
Class vL^lXjSl 

Book, _TDX 

Copyright If 



COPYRIGHT DEPOSIT. 



CIVIL GOVERNMENT in 

THE UNITED STATES 

and in THE STATE 

OF TEXAS 



A Text Book on Civics 



BY 

JOHN C. TOWNES, LL. D. 

DEAN OF LAW DEPARTMENT 
THE UNIVERSITY OF TEXAS 



PUBLISHED BY 

AUSTIN PRINTING COMPANY 
AUSTIN, TEXAS 



SSI 



7 1908 

fcOFY : 



COPYRIGHT 1908 

BY 

JOHN C. TOWNES 



Electrotyped, Printed and Bound by 

AUSTIN PRINTING COMPANY 
AUSTIN, TEXAS 






CONTENTS. 
Part One — Principles of Government. 

Chapter I. — General Conception of Government 1 

Chapter II. — Forms of Government 12 

Chapter III. — The Development of Constitutional 

Government 24 

Chapter IV. — Necessity for Different Departments of 

Government 32 

Chapter V. — Important Powers and Duties of Sov- 
ereignty and Government 43 

Chapter VI. — Relation of the Individual to Sov- 
ereignty and Government 57 

Chapter VII. — Political Parties 68 

Part Two-— Early Government in America. 

Chapter VIII. — Government in the Colonies and Un- 
der the Confederation 83 

Chapter IX. — The Preparation and Adoption of the 

Constitution of the United States 93 

Part Three — The United States of America. 

Chapter X. — General Nature of the United States 
Government and its Eelations to the States Com- 
posing it 101 

Chapter XI. — Legislative Department of the United 

States Government 113 

Chapter XII. — The Powers of Congress 127 

Chapter XIII. — Legislative Department — The Pow- 
ers of Congress (Continued) 110 

Chapter XIV. — The Executive Department of the 

Federal Government 156 



iv Contents 

Chapter XV. — Judicial Department of the Federal 

Government 168 

Chapter XVI. — Restrictive Provisions of the Federal 

Constitution 179 

Chapter XVII. — Guarantees in the Federal Constitu- 
tion to the States and to the Citizens of the States 
and of the United States . . . . 196 

Part Four — Government of the States, With Particular 
Reference to Texas. 

Chapter XVIII.— The State Governments 207 

Chapter XIX. — Brief Historical Sketch of Texas .... 220 

Chapter XX.— The Constitution of 1876 . . . ,. 236 

Chapter XXI. — The Legislative Department 249 

Chapter XXII. — The Executive Department . 259 

Chapter XXIII. — The Judicial Department 271 

Chapter XXIV. — Restrictive Provisions of the Consti- 
tution of Texas 289 

Chapter XXV.— Public Schools of Texas . .......... 298 

Chapter XXVI. — Miscellaneous Provisions of the 

State Constitution 315 

Part Five— -Municipal Law. 

Chapter XXVII.— The Nature, Subject-Matter, 
Source, Formation, Evidence, Results and Classi- 
fication of Municipal Laws 347 

Chapter XXVIII. — Legal Eights and Their Classifi- 
cation 356 

Chapter XXIX. — Some of the More Important Legal 

Doctrines and Institutions 369 



PREFACE. 

This book has been written for use in the public schools 
in Texas. It deals with Civil Government in the dual 
form in which it exists in our American Institutions. The 
subject is presented in five parts. Part One treats of the 
General Principles of Government. Part Two, the Gov- 
ernments in the Colonies, and during the Confederation. 
Part Three, The United States. Part Four, the State Gov- 
ernment in Texas, and Part Five, Some General Doctrines 
of Municipal Law. 

This arrangement is believed to be the most natural and 
convenient, and to give to the student the best opportunity 
to master the subject in all its phases. 

These general principles are the real spirit and genius of 
our institutions, of which our two Governments are the 
outgrow T th and embodyment. These principles made our 
forms of government not only possible, but practical and 
successful, but they w r orked slowly. It is therefore neces- 
sary to go back to the beginning of government in America 
and trace their processes of development through the Colon- 
ial Governments and the Confederation up to the State and 
the Union. This chronological order is important. The 
pupil should understand that the States preceded and cre- 
ated the Union. He should then be acquainted with the 
manner in which the United States Government was cre- 
ated, its nature, and the scope and limits of its powers. 



vl Preface 

He should further understand the effect of all this upon 
the respective State Governments, their present powers and 
functions, and their relations to the United States and to 
individuals. In presenting these last matters it is earnestly 
believed that it is better to deal specifically with some one 
State, and to present its government in concrete form. 
It is questionable whether a book which is so written as 
to be applicable equally to all the States can be the best 
for any one of them. As this text is prepared for use in 
Texas it treats of Government in that State, in the belief 
that this presentation should be the best for Texas schools. 
The study of government necessarily involves a considera- 
tion of its purposes and results, and as these are accom- 
plished through laws, it seems that a complete treatment of 
the subject requires at least a brief presentation of some of 
the leading legal doctrines and rules, This is the object 
of Part Five, under the head of Municipal Law. 

The Author. 
Austin, Texas, January 25, 1908. 



PART ONE. 
PRINCIPLES OF GOVERNMENT. 
CHAPTEE I. 

GENERAL CONCEPTION OF GOVERNMENT. 

General Idea. To govern is to control, to regulate, to 
cause one who is governed to obey the will of one who 
governs. 

Ideas Implied In. Governing therefore implies two per- 
sons : a governor, and one governed ; the making of rules 
by the first for the control of the second, and the secur- 
ing of obedience to these rules from the one subject to 
them. 

Making Rules. The governing person must exercise 
his judgment and will in determining what the other is 
to do. This determination, when formed and announced, 
becomes a rule of action to which the person governed 
must submit his will, and by which he must regulate his 
conduct. 

Communicating Rules. It is clear that it would be 
unjust to the one subject to control, for the one governing 
to make rules which he does not communicate to the one 
to be governed, and yet to hold him responsible for dis- 
obedience in breaking them. On the other hand, it would 
be unjust to the one having the right to govern for the 
one subject to government to be excused from obedience 
because he would not inform himself of rules which had 
been properly published. 



2 Civil Government 

Hence we find that all laws made for the government 
of a people should be published before obedience to them 
is required, and furthermore, that no one is excused for 
disobedience because he has not taken the pains to actu- 
ally inform himself regarding these after they are pub- 
lished. This is what is meant when we say that ignorance 
of the law never excuses one for breaking it. 

Interpreting Rules. Frequently the meaning of a rule 
is doubtful; different individuals may construe it dif- 
ferently. Hence, if every one subject to the rule is to be 
governed alike by it, there must be some way by which 
to decide authoritatively what the rule means. This is 
interpreting or construing the rule. This is always done 
by him whose will is expressed in the rule. The inter- 
pretation placed upon it by him must be accepted by all 
others. 

Applying Rules. If those who are subject to the rule 
always know, properly understand, and willingly obey 
it, the matters we have just discussed would complete 
the process of governing. But quite frequently rules are 
not obeyed, and hence there must be provision made for 
ascertaining when disobedience occurs. This can be done 
only by investigating the conduct of those suspected of 
disobedience and by comparing this conduct with the 
rule. If it conforms to the rule, there is no disobedience ; 
if it does not conform, there is. By such comparison 
each person's guilt or innocence is ascertained and de- 
clared. 

This bringing together of rule and conduct is applying 
the general rules to individuals and passing judgment 
upon them. 

Enforcing Penalties for Disobedience. Conviction of 
disobedience does not of itself insure enforcement of 
law. The process must go further and inflict upon those 



Principles of Government 3 

who have been convicted such punishment as is appro- 
priate to the wrongs committed. Inflicting punishment 
for past wrongs cannot change the fact that the law has 
been broken, but it tends to prevent future violations not 
only by those punished, but also by others. 

Illustrations. All these conditions are present in school 
government. The teacher is the governing body; the 
pupils are those to be governed. The teacher makes rules 
and communicates them to the pupils. Some of the pupils 
obey; others do not. As to the first, the end of govern- 
ment is accomplished, and there is no need for further 
action. But as to the second, government has so far 
failed, and to make it effective enforcement is neces- 
sary. So the teacher must investigate the conduct of 
those suspected of disobedience, judge them by the rules, 
and punish those found to be guilty. 

We find the same principles underlying all competi- 
tive games. Those having authority make and publish 
rules by which certain games are to be played. These 
are binding upon all who undertake to play in such 
games, but there are always some who will not voluntarily 
obey the rules. Therefore the makers of the rules, antici- 
pating this, provide for the selection of officers whose 
duty it is to watch the game, detect disobedience, and 
inflict the proper penalties. 

Necessity for Government. Government is necessary 
to the general well-being of every people. Man is a social 
animal. He neither will nor can live alone. Each in- 
dividual is dependent upon others for his comfort and 
development, if not for his life. On the other hand, each 
has the capacity to disturb and injure others. Unfortun- 
ately there are some who are more disposed to injure 
others than to properly control themselves. Hence there 
must be some governing body, having and exercising con- 



4 Civil Government 

trol over individuals, severally and collectively, in order 
to restrain them from unduly injuring one another or 
the community at large. If in any community every one 
were free to do just as he pleased, there could be no 
order nor security. The enjoyment of life, liberty, and 
property by each individual would depend entirely upon 
his own capacity to protect himself. Liberty and prop- 
erty would in fact lose their meaning, and life would be 
stripped of all that makes it desirable. 

Political Power, The power within any people which 
makes and enforces the laws by which that people is 
governed, and which protects it from outside interference, 
is called political power. 

Subject Matter of Political Power. In advanced com- 
munities this power does not undertake to control men in 
everything that they may feel, think, say, or do, but 
only in those matters and to such extent as is necessary 
in order to protect each individual in his just and equal 
rights, and the community at large from disorder. To 
state it differently, political power extends only to such 
conduct on the part of those subject to it as is injurious 
to the just and equal rights of other individuals, or to 
the general welfare of the community. 

Purpose of Government. The purpose of government 
is to protect each individual and the general public from 
undue and unjust interference by others. This enables 
each to work out his own development along his chosen 
lines of action, so long as he does not in so doing un- 
justly encroach upon the equal and similar rights of 
others. 

It is often found that the best and surest means of 
protection against individuals is to develop them to such 
& state of self-respect and self -helpfulness as to relieve 



Principles of Government 5 

them from the temptation to injure others, or to enable 
them to resist such temptation if it should be presented. 

Sovereignty. A certain amount of political power is 
sovereignty. How much of such power is necessary to 
entitle it to that designation is doubtful. This is one of 
the questions upon which theory and practice are hard to 
reconcile. 

The theorist says that to be sovereign, political power 
must be supreme and unlimited. It is certain that such 
power as this is sovereign. Still, the practical question 
arises, may not power limited in some respects still be 
sovereign? If we answer this in the negative, do we not 
prove too much? Under such a definition, has there ever 
been or could there ever be a sovereign? Has there ever 
been a state whose power was not limited as to territory? 
Rome boasted that she was Mistress of the World, yet 
there were always outlying districts over which her power 
did not extend. It seems that if we are to deal with 
sovereignty as a practical thing, we must accept terri- 
torial limitations upon it. Is this the only limitation 
which can be admitted? Must sovereignty necessarily 
be unlimited as to subject-matter? May not political 
power which is the highest and ultimate power over 
designated public affairs be justly termed sovereign as 
to those affairs, though there may be other matters which 
affect the same people over which it has no authority? 
Practically it seems that the people of the United States 
and of the several States have answered this question in 
the affirmative. In our American institutions we have 
the people of the United States exercising political power 
over designated matters, operating through the United 
States Government; and the people of the respective 
States exercising political powers over all matters not 



6 Civil Government 

within the jurisdiction of the people and Government of 
the United States, and operating through their respective 
State Governments. The jurisdiction of the people of the 
United States and of their Government extends through- 
out the territory of all the States, and embraces all per- 
sons within them, but it includes only such matters as 
are given over to this people and this Government in 
the Federal Constitution. The jurisdiction of the people 
of each State and of their Government extends to so much 
of the territory of the United States as is within the 
boundaries of the particular State, and to so many of the 
people of the United States as live within that State. It 
does not include those matters given over to the people 
of the United States and their Government; but over all 
other matters it is supreme. So we have two peoples and 
two governments operating in the territory and over the 
inhabitants of each State; yet each people and each gov- 
ernment is limited as to the matters over which its powers 
extend. Each within the sphere of its political activity 
is the highest and uncontrolled power, subject to no other 
authority and accountable to no one for its conduct. 
Each is equally without power as to the matters prop- 
erly within the jurisdiction of the other. This is the 
practical condition in which the citizens of the United 
States are placed, and from which there is no escape ex- 
cept by revolution. Must we not, then, either accept 
this idea of sovereignty— limited as to subject-matter, or 
agree that there is no sovereign power in our American 
institutions? The Constitutions of the United States and 
of the several States are based upon the theory of sov- 
ereign power over limited subject-matter, and the Su- 
preme Courts of the United States and the several States 
hold to and announce the same doctrine. On such au- 
thority we may safely accept it. 



Principles of Government 7 

The Seat of Sovereignty. In different peoples sov- 
ereignty is seated or vested in different persons. In some, 
it is in one individual; in others, in more than one, but 
yet a small number; in others, in a large proportion of 
those governed; and, perhaps, in a very few instances, 
in all of those governed. 

These differences in the location of sovereignty are the 
principal distinctions which separate the different forms 
of government. We are, however, concerned with them 
now only so far as they affect the necessity for organiza- 
tion by sovereignty for the purpose of exercising its 
powers. 

Organization Where All Political Power is in One Per- 
son. In those peoples in which sovereign power is vested 
without limitation in one individual, he can exercise these 
powers to a large extent in person. Therefore there is no 
need for extensive organization. What the sovereign 
wills is law, and he can apply and enforce this law at 
his pleasure. This is the extreme of centralized power, 
and results in the simplest, though far from the best, 
form of government. This condition, or something ap- 
proaching it, has existed at some time in almost all coun- 
tries of which we have any knowledge. 

Organization Where Political Power is Distributed 
Among a Few. When sovereign power is vested in more 
than one person, even though the number is small, some 
arrangement for concerted action becomes necessary. In 
such a people the law represents the joint will of all those 
invested with sovereignty, not the will of a single in- 
dividual. This joint will can only be developed and as- 
certained by concert of action. After their joint will is 
ascertained they must act together in applying and en- 
forcing it. Entering into a common understanding as 



8 Civil Government 

to the manner of accomplishing all this is simply or- 
ganizing for the exercise of their political power, or 
of governing. 

Organization Where Political Power is Widely Dis- 
tributed. In many peoples sovereign power is distrib- 
uted among a large number of persons, frequently among 
thousands, and in some cases among millions. It is 
manifestly impossible for such numbers as these to con- 
tinuously act together in the exercise of their powers. 
Governing is a continuous process. These large numbers 
therefore must either abandon the undertaking as im- 
practicable, or devise some method of organization by 
which the ordinary exercise of these powers can be en- 
trusted to a few, leaving the great body of the people 
free to go about their usual occupations. On the other 
hand, if all political power were given over to the few, 
this would be limiting sovereignty to those thus endowed, 
and the community would thereby be placed in the class 
just considered. How can these difficulties be avoided 
and the desired end be accomplished? 

The world struggled long to find a practical answer to 
this perplexing question. The best yet given is Represen- 
tative Democracy. This is the form of political organiza- 
tion in which sovereign power is vested in and retained 
by all or by a large proportion of those governed, who 
act personally and directly in the exercise of their great- 
est and most important functions, but who delegate to 
certain of their number authority to represent and act 
for them in the ordinary processes of governing. This 
organization is more complex than is required in those 
communities in which all power is in an individual or in a 
small number. Its end, however, is the same: to enable 
those vested with political power to exercise it in the 



Principles of Government 9 

control of those subject to such power; in other words, 
to enable sovereignty to govern. 

Definition of a Government, As the sole end designed 
by sovereignty in organizing these agencies is to enable 
it to govern, and as the actual operation of these agencies 
is governing, it is quite natural to call the system of these 
agencies a Government. 

We may, therefore, define a Government as the system 
of agencies which sovereignty creates and maintains for 
the purpose of exercising its powers of control over those 
subject to it. 

Illustrations. The Government of the United States 
means all the agencies created by and under the Fed- 
eral Constitution through which the people of the United 
States exercise their political power over those matters 
placed within their jurisdiction by that Constitution. 
The term includes each and all of the three departments 
of Government, and all the officers of each; i. e., the Pres- 
ident and all executive officers under him, Congress and 
all its subordinate officers, and all the United States 
judges, from the highest to the lowest, and all their 
subordinates. 

So also when we speak of a State Government, we mean 
the sum or aggregate of all the agencies through which 
the people of a particular State exercise their political 
power over those subjects not given over in the United 
States Constitution to the Federal Government. The 
term includes the Governor and all his assistants and 
other executive officers, the State Legislature, and State 
Judiciary. All of these go to make up the State Gov- 
ernment. 

Law. Sovereignty, acting either directly or through 
its governmental agencies, makes Law; that is, it es- 



10 Civil Government 

tablishes rules by which its governmental agencies and 
all others subject to its power are to be controlled. A 
law is an authoritative rule of conduct, proceeding from 
a power capable of enforcing it, for the control of those 
who are subject to it. It must proceed from a source 
having power to enforce it. It must be directed to, or 
operate upon, those subject to such power. It must be 
mandatory, requiring obedience; not merely advisory. It 
must be continuous ; that is, must be intended to regulate 
conduct habitually, either permanently or for a designated 
time. It must prescribe penalties for disobedience and 
provide for their enforcement; otherwise those not dis- 
posed to obey would disregard it. 

RECAPITULATION. 

To govern is to regulate, to control. It implies two 
persons, the one exercising control and the one subject 
to it. It involves making and announcing rules by the 
one governing and obedience by the governed. If the 
latter refuses to obey, then the one governing must en- 
force obedience, which involves interpreting the rules, 
applying them to the disobedient person, and inflicting 
punishment upon him. 

Necessity for external control grows out of the nature 
of man. The power which organizes and maintains civil 
government is called political power. 

Political power undertakes to regulate only that con- 
duct which, if uncontrolled, would be injurious to in- 
dividuals or to the public. 

Unlimited political power is unquestionably sov- 
ereignty. 

There has never been an example of unlimited polit- 
ical power. It is always limited as to territory, if in no 
other respect. 



Principles of Government 11 

In the United States sovereignty is divided, also, as 
to subject-matter, some political matters being within the 
jurisdiction of the people of the United States, and others 
being within the jurisdiction of the people of each of the 
several States. The political power of each of these gov- 
ernments, State and Federal, over these respective mat- 
ters, is practically sovereign. 

A government is the aggregate of the agencies which 
a sovereign creates and maintains for the purpose of 
exercising its political powers and controlling those sub- 
ject to its jurisdiction. 

A law is a rule of conduct established by a sovereign 
for the purpose of creating and maintaining a govern- 
ment, or of controlling the conduct of those subject to its 
authority. 

QUESTIONS. 

I. 1. State the general idea contained in government. 2. Ex- 
plain in order the steps involved in making and enforcing rules. 
3. Apply these principles in some illustration not given in the 
text. 

II. Explain why government is necessary. 

III. 1. Define political power. 2. Over what subject-matter 
does it extend? 3. What is its purpose? 

IV. 1. What is meant by sovereignty? 2. How far can politi- 
cal power be limited and still be sovereign? 3. How is sov- 
ereignty divided in the United States? 4. What sovereign pow- 
ers does each State retain? 

V. 1. What is meant by the seat of sovereignty? 2. How 
does it differ in different forms of government? 3. Explain the 
different organizations which these differences in the seat of gov- 
ernment make necessary. 

VI. 1. Define a government. 2. Distinguish between sov- 
ereignty and a government. 

VII. 1. Define a law. 2. By whom is it made, and what ele- 
ments must it have? 



12 Civil Government 

CHAPTER II. 

FORMS OP GOVERNMENT. 

Differences in Governments. Governments differ prin- 
cipally in the following respects : first, in the seat of sov- 
ereignty; second, in the purposes for which they are or- 
ganized and maintained, and third, in the number and 
nature of the agencies constituting them. The second 
and third of these differences depend largely upon the 
first. 

Absolute Monarchies. Those governments in which all 
political power is vested in and exercised by one person 
are called Monarchies. In them the will of the one ruler, 
called a monarch or some other appropriate name, is the 
supreme law. Theoretically, there is but little need for 
governmental agencies. This one individual can make, ap- 
ply and execute the law. If for convenience or other rea- 
son he delegates any of his authority to another, such dele- 
gation is subject to recall at any time. Neither the person 
to whom the power is delegated, nor those interested in 
its exercise, have any vested right in it or its continu- 
ance. The delegation of authority will last so long, and 
only so long, as the sovereign desires. Eights cannot be 
said to exist under such conditions, except in the sov- 
ereign. 

Fortunately this absolute form of government is usu- 
ally short-lived. The limitations of human nature assert 
themselves even against the so-called absolute sovereign, 
and he has always been compelled to call in others to 
assist him in the exercise of his powers. These assistants 
have uniformly obtained some fairly permanent recog- 
nition and status, until they have become parts of the 



Principles of Government 13 

government itself ; and to this extent its nature is changed 
into the class next to be considered. 

Limited or Constitutional Monarchies. Closely resem- 
bling the Monarchy proper, or Absolute Monarchy as it 
is sometimes called, and in many instances growing out 
of it, is the Limited or Constitutional Monarchy. In this 
form of government one person is declared to have all 
sovereign power, but he holds this subject to limitations 
by virtue of which others share to some extent in the 
powers and duties of sovereignty. The nature and ex- 
tent of the power vested in such others differs greatly in 
different governments. In some cases they are very ex- 
tensive and important; in others they are of little conse- 
quence. In every case the enjoyment and exercise of 
them constitute limitations on the power of the monarch, 
and from this arises the name, Limited Monarchy. If 
the limitations are extensive, and have become permanent 
parts of the plan of government, it is called a Constitu- 
tional Monarchy. 

In some instances the encroachments upon the powers 
of the monarch, and the assumption of the functions of 
sovereignty by others, are so great and so firmly estab- 
lished that they change the nature of the government so 
that, while it still retains the name and outward form of 
a monarchy, it becomes in fact government of another 
form. This is and for a long time has been the case with 
the English Government. At one time it was a real mon- 
archy. Later it became a constitutional monarchy, in 
name and nature. It still bears this name, and has an 
hereditary sovereign who is said to rule, but in fact the 
people have long since taken over all the essential powers 
and functions of sovereignty, and there is perhaps no 



14 Civil Government 

republic in the world in which the people have more 
power than in England. 

Aristocracy. When the sovereign power is vested in a 
small number of some select class or classes, the govern- 
ment is called an Aristocracy. This form used to be more 
common than it now is. It has resisted the democratic 
tendencies of the world's progress less successfully than 
the monarchical form, and there are now few, if any, 
actual examples of it. 

Democracies. When sovereign power is vested in all 
those governed, or in such a large proportion of them as 
to thoroughly identify the governing class with all kinds 
and conditions of those governed, the government is called 
a Democracy. These are of two classes, Pure Democracies 
and Representative Democracies. 

Pure Democracies. In Pure Democracies all those shar- 
ing in the sovereign power act directly in the discharge 
of governmental functions: that is, they, by direct ac- 
tion, form and express the collective will of those en- 
titled to participate in the government, and directly ap- 
ply and enforce it. This form of government for any 
large number of people is manifestly impracticable. The 
body is too unwieldy and cumbersome to be effective. 
In very small communities, and as to matters affecting 
only themselves, it is the ideal plan of self-government. 

Representative Democracies. A Representative Democ- 
racy is a government in which the governing classes ex- 
ercise many of their political powers through chosen 
agents, usually called officers. In communities of large 
population or area this is the only practical form of de- 
mocracy. All of the individuals having a share in the 
political power of the community act directly in organiz- 
ing a representative government. In this organization 



Principles of Government 15 

they provide for the exercise of the ordinary powers of 
sovereignty through designated officers, giving to them 
respectively such powers as they desire them to have, and 
placing upon them such limitations as they think best. 
These several agencies and their organization and opera- 
tion constitute the Representative Democratic government 
with which we are now dealing. In America such gov- 
ernments are called Republican, and are created by writ- 
ten instruments known as Constitutions. 

Officers. In these Constitutions provision is always 
made for the election of officers who are to discharge the 
duties and exercise the powers conferred upon the gov- 
ernment. In the great majority of instances the length 
of time for which these officers shall serve is stated in 
the law. Upon the expiration of that period the offices 
must be refilled. In most instances the selection of the 
successors is made by the voters of the district in which 
the officers are to serve, so that in this matter also the 
sovereign people act directly. 

Nature of an Officer's Power. After an officer is se- 
lected and takes charge of his office he exercises, not his 
own powers, but the powers of sovereignty. He is an 
agent for and representative of the people, under whose 
authority he acts, and all his official action is taken in 
a representative capacity. Considered as an individual, 
he has no more authority than any private person, but 
in his representative or official capacity, within the limits 
of his authority, he stands for and exercises the powers 
of the whole sovereign people. This is what is meant by 
the expression that "a public office is a public trust." 

The True Seat of Sovereignty in Democratic Govern- 
ments. As has been stated, democracies are governments 
in which sovereign power is vested and distributed among 



16 Civil Government 

all or a large proportion of the people. They are spoken 
of as governments by the people, and in the constitu- 
tions creating such governments it is often stated that 
"All political power is inherent in the people.' ' It is 
easy to misunderstand these and similar expressions, and 
conclude that political power inheres in each individual 
as a matter of personal right. This is not correct. It is 
"the people'' in a collective sense who are sovereign. It 
is the collective judgment and will which is supreme; 
not the will of the individual. It is this collective will 
which determines who shall and who shall not enjoy 
political privileges, and it is not until the people have 
granted such a privilege that the one enjoying it can 
claim it as a right. The highest and most important po- 
litical right is the right to vote. Even this is not a pri- 
mary and personal one. It exists only in those upon whom 
the collective judgment and will of the people have con- 
ferred it. In every State there are many persons who 
are not permitted to vote, even though they be citizens. 
These excluded classes include minors, and usually all 
females, and adult males not possessing prescribed quali- 
fications. It is within the power of sovereignty to change 
these qualifications, either by increasing or lessening 
them. By the Reconstruction measures, just after the late 
war, suffrage was extended to the adult males of a race 
which had previously been disfranchised. By a num- 
ber of constitutional amendments many of the States of 
the Union have added to the qualifications for suffrage, 
so that many persons who once had the right to vote are 
now deprived of it. In this matter, as in all others in 
a popular government, it is the will of the majority, law- 
fully declared, which governs, and the will of the individ- 
ual must yield to it. 



Principles of Government 17 

Subdivisions of a State and of Its Powers. In every 
large community, no matter what its form of government, 
there is diversity of interest. There are matters which 
pertain to and directly involve the welfare of the whole 
people. There are others which are strictly local. They 
may be of great importance to the small section to which 
they relate, and yet not affect the public at large. These 
conditions render necessary another division of power, 
the people of the whole State retaining power over those 
matters in which the interests of all are involved, and 
giving up to the control of the people in the several 
localities all matters which affect them only. In order 
to do this effectively it is necessary to form local sub- 
divisions of the State's territory; hence we have counties, 
parishes, townships, etc. 

Unitary States. A Unitary State is one in which all 
political powers are vested in one person or one group of 
persons ; one in which there is no division of the subject- 
matter over which civil government extends, the control 
of all political activities being in the one sovereign. 

Example of a Unitary State. Texas, during the exist- 
ence of the Republic, is the best example of the Unitary 
State which has ever existed in territory now covered 
by the United States. Texas, in conjunction with Coa- 
huila, had been a State in the Republic of Mexico. On 
March 2nd, 1836, Texas separated from Mexico and de- 
clared itself, "a free, sovereign and independent Nation." 
Mexico resisted this. On April 21st, 1836, Texas sus- 
tained her claim of Nationality on the battlefield of San 
Jacinto, and in September following adopted a constitu- 
tion organizing its permanent government. In this 
there was no division of political subject-matter. The one 
people possessed and exercised complete power over all 



18 Civil Government 

political matters whatsoever, and the government organ- 
ized by them was given power to deal with all these 
matters, both general and domestic. This sovereignty 
and this government extended to all those matters which 
go to make up the total or sum of the powers of the 
people of the United States and of the several States 
and of both these governments. In these respects, as in 
many others, the Republic of Texas stands unique in 
the world's history. The history of the establishment, 
maintenance, and operation of that Government is ex- 
ceptionally interesting and instructive. 

Confederations. A Confederation, strictly speaking, is 
not a separate state. It is a voluntary combination of 
several states, otherwise independent, for purposes ex- 
pressed in the agreement between them. There is no 
merging of the several contracting states into a new state, 
but only a combining of some of their powers and ener- 
gies for the accomplishment of the purposes mutually 
agreed upon. It is in the nature of a political partner- 
ship between states. Good faith may require that the 
agreement be kept, but there is no higher power, created 
by the agreement, having authority to lawfully prevent 
any of the states from withdrawing. 

Example of a Confederation. A very fine example of 
a Confederation is found in the early effort of the Amer- 
ican Colonies to combine for common defense, which 
in recognition of this fact is called "The Confederation. ' ' 
It could in no proper sense be called a State or Nation. 
It was a loosely united partnership held together not by 
any strength inherent in the organization, but by the 
pressure of common dangers from without. As soon as 
these external forces were in some measure removed, the 
process of falling to pieces set in, and continued until 



Principles of Government 19 

the then almost valueless Confederation was succeeded 
by the present Government of the United States. 

Federal States. On the other hand, in the creation of 
a Federation or Federal State the combination goes fur- 
ther than a mere agreement for mutual aid and support, 
and results in a more or less extensive union of the sev- 
eral states, which were before independent, into a new 
state. It involves a giving over, so to speak, of some 
portion of the sovereignty of each of the states to the 
new political unit created by the agreement. The pow- 
ers and functions which are not so surrendered remain in 
the several contracting states. This brings about the 
seeming anomaly of divided sovereignty. 

Examples of a Federal State. Possibly the best ex- 
ample of a Federal State which can be cited is the United 
States. Prior to the adoption of the present Constitu- 
tion the people of the several States entering into the 
Union were separate and independent sovereignties. True, 
the States were members of the "Confederation," but 
that did not take from them sovereign power. 

Whether the United States is simply a Confederation 
with larger powers than its predecessor, or is in reality a 
Federal State, was a question of great difficulty and mo- 
mentous concern to all parties to be affected by it. It may 
be said that this was the real matter of contention between 
the North and the South in the late Civil War. The North 
contended that the people of the several States, in form- 
ing the United States Government, had established an 
indissoluble Federal State; while the South contended 
that the several States had by compact among themselves 
formed a Confederation, from which any one or more 
of the contracting parties could withdraw at pleasure. 
We may say in passing that the Constitution as written 



20 Civil Government 

and the historical facts leading up to and culminating in 
it, favored the contention of the South, while the "ar- 
bitrament of the sword," to which the matter was sub- 
mitted, favored the contention of the North. The ques- 
tion, so far as involved in a State 's right to withdraw from 
the Union, is definitely settled by the results of the war, 
and it is now universally conceded that no such right 
exists. There are still serious differences of opinion as 
to the rights and powers of the several States within this 
indissoluble union, but these differences no longer extend 
along territorial lines, and thus present no occasion for 
sectional feeling or uneasiness. 

Classifications Based on Purposes of Government. So 
far we have considered the different kinds of government 
mainly from the point of view of the location of sov- 
ereignty. They may also be classified with reference to the 
purposes to be effected by them. On this basis govern- 
ments are divided into good and bad. The former include 
all those which are intelligently designed to promote the 
general welfare of those who are governed by them, which 
is the true end of all proper governments. No matter what 
other characteristics any government may have, if this 
is not its purpose and result, it is not to be regarded as 
good. A monarchy might be strong and efficient in pro- 
moting the interest of the monarch maintaining it; it 
might command the fear and consideration of all other 
powers; but if it were administered for the sole benefit 
and aggrandizement of the ruler, in no just sense could 
it be called good. The same is true of a republic. If 
the people become engrossed in other interests and in- 
different to their public duties, and so suffer designing 
and selfish men to use the government for their personal 
advantage, instead of for the general welfare, the gov- 



Principles of Government 21 

ernment, thus prostituted, cannot be called good. It 
would require a revival of patriotic interest and a 
thorough cleaning out of the self-seeking officials before 
it could become good. 

Government by the People. It is frequently said that 
if government is organized and operated in the interest 
and for the benefit of the people, it is immaterial in whom 
the right and power of governing may be placed. Or, 
as it is often expressed, if the government be for the 
people, it is not important that it be by the people. There 
is a certain plausibility in such statements which is well 
calculated to mislead. 

Theoretical Objections. The first objection to the 
proposition is that there is nothing in the nature and 
disposition of man to lead us to believe in the practicabil- 
ity of such a scheme. Human nature is too selfish and 
weak to make it probable that a succession of rulers 
could be found who would really subordinate their own. 
interests and ambitions to the general good of those 
governed by them, It might be possible to find one 
such ruler, but not a continuous line of them. 

Objections from Experience. The world's experience 
has proved the correctness of these apprehensions. There 
has never been a government, maintained for any length 
of time, in which the interests of those governed and of 
the rulers were not identical where the advantages and 
benefit of the governed were given the preference. It is 
only in those states in which the people govern that there 
is identity of the interests of the rulers and of the ruled, 
and where the motives of self-advantage prompt to good 
government. 

Educational Advantages of Self-Government. If we 

should concede that government by some other power 



22 Civil Government 

would be as disinterested and beneficial from every other 
point of view, there is still one strong argument in favor 
of popular government. There is no other method by 
which the mass of the people can obtain the education 
and development which necessarily results from interest 
in public affairs and from active participation in them. 
If some other form of government were proved to be as 
good in every other respect, it would lack this paramount 
advantage. 

The several agencies constituting a system of govern- 
ment, their differences, and the distribution of power 
among them, is dealt with elsewhere. 

RECAPITULATION. 

The differences in governments relate primarily to 
(a) the seat of sovereignty, (b) the purposes sought to 
be accomplished, and (c) the agencies constituting them, 
and the distribution of power among such agencies. 

Governments in which sovereignty is in one person are 
called monarchies. If the power of the monarch is un- 
limited, it is an absolute monarchy. If the power of 
the monarch is limited by fixed rules which are parts of 
the constitution of the state, the government is called 
a limited or constitutional monarchy, 

Governments in which sovereignty is in more than one 
person, but yet in a small number of persons, are called 
aristocracies. These have practically ceased to exist. 

Governments in which sovereignty is in all those sub- 
ject to the government, or in a large proportion of them, 
and so distributed among different classes subject to 
the government as to make them fairly representative 
of the interests of all, are called democracies or repub- 
lics. 



Principles of Government 23 

When all the powers of sovereignty in such a govern- 
ment are exercised directly by those among whom sov- 
reignty is distributed, the government is a pure democ- 
racy. 

When the powers of sovereignty are generally distrib- 
uted among those to be governed, but a considerable 
portion of these powers are not exercised directly by 
those having them, but are delegated to agents or repre- 
sentatives, the government is called a representative de- 
mocracy, or a republic. 

The government of the United States and that of each 
of the several States is a representative democracy, in 
which the sovereign power is vested not in all the people, 
but in a large part of those governed, whose interests are 
so thoroughly and inseparably connected with the in- 
terests of all that the practical result is fair and just 
representation in the government of all classes and con- 
ditions of the inhabitants of the country. 

Good governments are those which are designed to 
promote, and so conducted as actually to promote, the 
general good of all classes of persons subject to them. 

Government by the people is the best and surest guar- 
antee of government for the people, and therefore of 
good government. 

Constant vigilance and patriotic interest and action 
by all the citizenship of a country are essential to the 
preservation of good government. 

QUESTIONS. 

I. In what respects do governments differ from one another? 
Why is this? Name the different forms of government. 

II. What are the characteristics of an absolute monarchy? How 
does a limited or constitutional monarchy differ from this? 

III. What is an aristocracy? 



24 Civil Government 

IV. Define a democracy. Explain the difference between a pure 
and a representative democracy. Define a republican government. 
A constitution. For what does a constitution provide? Discuss 
the nature of an officer's power. Where is the sovereign power 
in a democratic government located? Are the people collectively 
or individually sovereign? 

V. What is the highest and most important political right? 
What is the nature of this right, and by whom is it given? Ex- 
plain how and by whom the right of suffrage can be limited, ex- 
tended, or withdrawn. 

VI. Why are local subdivisions of a State's territory neces- 
sary? What are these subdivisions called? 

VII. What is a unitary state? Show how Texas as a Republic 
was such a state. What is the nature and purpose of a con- 
federation? Can a State withdraw from it at any time? Give 
an example of this form of government. What is a federal state? 
Explain the difference between it and a confederation. Can a 
federal state exist without divided sovereignty? What govern- 
ment succeeded the "Confederation"? When and by what means 
was it finally determined that this new government was indis- 
soluble? How can governments be classified beside on the basis 
of locality of sovereignty? Explain fully why government for the 
people and by the people is the best possible form of govern- 
ment. 



CHAPTER III. 

THE DEVELOPMENT OP CONSTITUTIONAL 

GOVERNMENT. 

Necessity for Government. We will make no effort to 
trace the historical development of governments. Gov- 
ernment in some form is made necessary by the nature 
of man. He is a social being who refuses to live in isola- 
tion. Companionship and co-operation are necessities of 
his being, and these necessitate common adjustment and 
adaptation of the one to the others. These cannot be 



Principles of Government 25 

safely left to the determination of each of the several in- 
dividuals. There must be some authority having control 
over each for the good of all. This common authority 
is sovereignty, and the exercise of it is government. 
Therefore we see that the need for government is in 
the very nature of man. This necessity has been met 
in different ways by different groups of people at differ- 
ent places and in different times. 

Development of Monarchy. So far as the earliest rec- 
ords can be traced it seems probable that the usual 
method has been for the head of a family to assume au- 
thority over his own household, and thus constitute him- 
self the ruler of that small body. This is known as the 
Patriarchal form of government. Then different families 
would combine into larger groups, either by agreement 
among themselves, or by conquest of one by the other. 
The larger group thus formed would again combine with 
another, and a people would grow up subject to the au- 
thority of the head of the conquering tribe, or of the 
one given preference by agreement, who would be the 
monarch. This is a strongly centralized form of govern- 
ment. 

Democratic Tendencies. As intelligence increased and 
mental and moral forces came to be recognized the nat- 
ural result was to de-centralize government; that is, to 
distribute political power among certain classes, or per- 
haps among the whole people. The dissemination of in- 
telligence was gradual, and far from uniform in the dif- 
ferent sections. Hence the corresponding development of 
democratic ideas and the consequent modifications of 
the earlier forms of government were irregular and fol- 
lowed by different results. 

Growth of the English Constitution. It seems probable 



26 Civil Government 

that all the earlier forms of government succeeding the 
tribal period were growths following and manifesting 
the ruling traits of the particular peoples among 
whom they existed. This is true of some of the more 
modern governments as well. England is a most notable 
example of this historical fact. There is no date or even 
period in English history of which we can say, the English 
government was established at this time. Its growth 
began before the beginning of recorded history, and its 
development is still going on. 

Present English Constitution. It is customary to say 
that England has a constitution. Properly understood 
this is true. But when we use the word constitution with 
reference to England, we mean an essentially different 
thing from that which we mean when we use the same 
term with reference to American institutions. England 
has no written constitution, while in America the word is 
never used in a political sense except to indicate a writ- 
ten, fundamental law, by which a government is created 
and its powers are to be tested. 

The English Constitution is the sum of the political 
principles, precedents and traditions to which the Eng- 
lish people are accustomed, and by which they have been 
governed for generations. It is true that there are a few 
great state papers, such as the Magna Charta, the Peti- 
tion of Right, etc., which are frequently referred to as 
containing or perpetuating the English Constitution, but 
these, while of great and inestimable value, are declar- 
atory rather than creative. If looked to as a basis of 
government, they are fragmentary and entirely inade- 
quate. A constitution must be something broader and 
more complete than any one of these or all of them taken 
together. So, as stated, in its final analysis the English 



Principles of Government 27 

Constitution is found in the collective temperament and 
character of the English people, and in their political 
traditions, beliefs, and habits. 

American Constitutions. In sharp contrast with those 
constitutions which have grown up with and consist in 
the character and habits of the people are the written 
constitutions by which our American governments are 
created. These are written instruments agreed upon and 
ordained by the people to be governed by and under 
them, setting forth in enduring form the plan of govern- 
ment to be instituted and the fundamental principles upon 
which it is to be administered. They are the direct ex- 
pressions of the sovereign will, and constitute the su- 
preme law of the people ordaining them. 

Written constitutions are an American product. The 
idea was developed gradually. They were foreshadowed 
in the " charters'' of the original colonies, though they 
differ materially from these charters. Whatever uncer- 
tainty there may be as to the sources from which the idea 
of a written constitution came, there is no doubt that its 
existence is a distinguishing characteristic of American 
political institutions. Its introduction has given a 
strength and durability to our governments which it 
would have been impossible to attain by any other means. 
Without written constitutions our State Governments 
could not have reached their present efficiency and value, 
and the United States Government would have been in- 
conceivable and impossible. 

Constitution of the United States. The Government of 
the United States is essentially the creature of the Federal 
Constitution. It was brought into being by the adop- 
tion of that Instrument. Through that it received all its 
powers and capacities. It has no authority beyond that 



28 Civil Government 

given by its provisions. Unless it can find warrant there 
for any action proposed by it, the act cannot rightfully 
be performed. 

If, however, power is conferred upon the Federal Gov- 
ernment, this as a rule takes such power away from, the 
States. This is particularly true as to the legislative 
and executive powers. There is a much larger sphere 
of concurrent authority in judicial matters, as will be ex- 
plained more fully hereafter. 

Constitutions of the States, Each State of the Union 
has a written constitution, which sets forth the plan of 
government established by the people of that State. In 
their fundamental conceptions and plans they are the 
same, though they differ in detail. These State Constitu- 
tions cover all political matters not given over exclusively 
by the Federal Constitution to the United States Govern- 
ment. 

As State Constitutions create the State Governments 
they and the laws made under them are the sole sources of 
authority to all State officers, and are binding on them in 
all their official action. Provisions in a State Constitu- 
tion contrary to the Constitution of the United States 
are of no legal effect. State statutes, contrary to the 
Constitution of the United States or to that of the State 
by whose Legislature they are enacted, are void and can- 
not be enforced as law. 

Matters Usually Contained in Written Constitutions. 
Written constitutions usually contain : 

1. A preamble, setting forth by whom and for what 
purpose the constitution is ordained. 

2. A bill of rights. This is a number of provisions 
declaring certain rights and privileges to belong to the 
people, and that they are inalienable and are withdrawn 



Principles of Government 29 

from and are not to be affected by the grant of author- 
ity to the several officers of the government, except as 
is expressly provided in the constitution itself. 

3. Provisions creating the several departments of 
government, enumerating many of the officers which con- 
stitute them and giving general directions regarding them 
and the exercise of their powers. 

4. A number of general provisions on miscellaneous 
subjects, such as the right of suffrage, taxation, public 
schools, etc. 

5. Provisions as to manner of amending the constitu- 
tion. 

6. Provisions for voting upon the adoption of the 
constitution; and the statement of the time it shall go 
into effect if adopted and its effect upon pre-existing laws 
and rights. 

Second Classification of Contents of Written Constitu- 
tions. Looked at from another point of view the pro- 
visions of a constitution may be classified as: 

1. Creative ; including all those which provide for the 
organization of the government contemplated therein. 

2. Functional; including all those provisions which 
determine what each department of the government and 
the officers pertaining to it shall be authorized to do and 
the provisions as to how they shall perform these duties. 

3. Perpetuative ; or those which provide for the con- 
tinuance and maintenance of the government ; and 

4. Kestrictive; or those which prohibit the govern- 
ment or any of its officers from performing certain acts. 

These provisions are frequently intermingled in draft- 
ing the constitution, but ordinarily they are readily dis- 
tinguishable one from the other, and in some connec- 
tions the classification is useful. 



30 Civil Government 

RECAPITULATION. 

Government is necessary because of man's nature, and 
because of his lack of proper judgment as to his own 
rights and his lack of self-restraint. 

Presumably government originated in the family, ex- 
panding through groups of families into tribes, and from 
tribes into nations. 

In primitive governments all political power was in the 
hands of a patriarch. In bringing several families to- 
gether, this power passed to the ruler of the larger group, 
usually called a monarch. 

As intelligence increased political power was distrib- 
uted, so the succeeding types of governments were more 
nearly democratic. 

The English Government is an illustration of the grad- 
ual growth of democratic ideas, of their adoption into 
the substance of a government without a corresponding 
change in its name or form. 

The English Constitution is in substance the sum of 
the political principles, precedents and traditions of the 
English people. Magna Charta and other English state 
papers are most valuable as expressing great political 
principles, but they are too fragmentary to embody a 
constitution. 

An American constitution is a written instrument put 
in force by the people ordaining it, and which sets forth 
the plan of government which they establish, and the 
fundamental principles upon which it is to be maintained 
and administered. 

The Government of the United States is created by the 
Constitution of the United States, and it has no power 
or authority except such as is conferred upon it by that 
instrument, either expressly or by fair implication. 



Principles of Government 31 

The legislative and executive powers of the Federal 
Government as a rule are exclusive of similar powers by 
the State. The judicial powers of the two governments 
are to a large extent concurrent. 

The Constitution of the United States and the laws 
made in pursuance thereof are the supreme law of the 
land. 

State Governments are created by Constitutions adopted 
by the people of the respective States. State Constitu- 
tions must conform to the Constitution of the United 
States. If they differ from it in any respect, they are 
void to the extent of the conflict. 

QUESTIONS. 

I. Explain the necessity for government. 

II. 1. What is the earliest form of government? 2. Trace its 
development from the patriarchal to the monarchical form. 3. 
From the monarchical to the democratic. 

III. 1. What was the nature of the growth of the English 
Government? 2. What is meant by the English Constitution? 
3. Where is it found? 4. How does it differ in form from the 
American? What was the origin of written constitutions? 

IV. 1. By whom was the Constitution of the United States 
made? 2. What government did it create? 3. What power and 
only what power has this government? 

V. 1. What is the nature and purpose of a State Constitu- 
tion? 2. What matters does it cover? 3. What government does 
it create? 

VI. 1. What matters are usually contained in written con- 
stitutions? 2. Give two classifications of these. 



32 Civil Government 

CHAPTER IV. 

NECESSITY FOR DIFFERENT DEPARTMENTS OF 
GOVERNMENT. 

When sovereignty undertakes to establish a government 
it must make provision for carrying on all the processes of 
making, communicating, interpreting, applying, and en- 
forcing its laws. In democratic governments this is done 
by creating designated offices and by conferring upon the 
officers who fill them authority to represent the sov- 
ereign in the discharge of the functions committed to 
them. Experience has taught that it is well to separate, 
as far as it is practicable these different powers and 
duties. Hence, all the Governments in the United States 
are divided into three departments, called respectively, 
the Legislative, the Executive, and the Judicial. The 
Legislative makes the laws, the Executive enforces them, 
and the Judicial interprets and applies them. 

Only the general features of these departments will be 
given, and the treatment will be confined to our American 
institutions. 

Legislative Department. The Latin word for laws is 
leges. From this word the making of laws is called legis- 
lating, the men who make laws, legislators, and the col- 
lective body which makes them, a legislature. The legis- 
lature of the United States is called Congress. All Amer- 
ican legislatures consist of two houses, called respectively 
the Senate and the House of Representatives, the latter 
being sometimes known as the Assembly or General Court. 
United States Senators are elected by the Legislatures 
of the States which they represent. All other legislators 
are elected by the votes of the representative districts 
which they represent. Legislative bodies mpet in regu- 



Principles of Government 33 

lar session at stated times at the capitol of the govern- 
ment of which they are a part. They may be called in 
special session at other times by the chief executive. 
The respective Houses meet separately. Each organizes 
by the selection of proper officers and the appointment 
of proper committees from its own members. 

Legislative Procedure. All laws passed by them must 
be in writing or print, and must be concurred in by 
both Houses. A proposed law, when it is brought before 
the Legislature, is called a Bill. Any member of either 
House can introduce any bill which he desires, w T ith the 
exception that all bills for raising money must originate 
in the House of Eepresentatives. A bill is introduced 
by a member calling the attention of the presiding officer 
to the fact that he proposes the bill, and by his taking or 
sending the bill to the Clerk. The presiding officer then 
calls the attention of the body to the fact of its intro- 
duction, and the bill is read, either at length or by its 
title. It is then referred to the committee which is to 
consider it and report upon it. This report may recom- 
mend the passage of the bill, either as introduced, or with 
stated amendments, or it may recommend its defeat. 
When the report of the committee is made the bill is 
read at length, and put on the Calendar. It will then 
come up in its regular order, or under some conditions it 
may be called up out of its order. When it comes up the 
third time it is discussed and may be amended. It is 
then voted on. In some States not only must the bill 
be called up and read in each House three times, but it 
must be voted on at each reading, so that in such States 
a bill to become a law must get a majority vote three 
times in each House. 

Passing a Bill. If a bill receives a majority vote in 
3 



34 Civil Government 

the House in which it is introduced it is passed by this 
House. If it does not receive such vote, it is lost. If 
it passes that House, it is sent over to the other House 
where it goes through a similar process. If it is amended 
in the second House, the bill as amended must be sent 
back to the House in which it originated for its action 
on the amendments. If that House concurs in the amend- 
ments, the bill is passed. If it does not concur, the bill 
is defeated, unless each House appoints a conference com- 
mittee to consider the bill together, and come to some 
understanding as to the matter and report the bill in 
some form satisfactory to each House. No bill can be- 
come a law until it passes both Houses in exactly the same 
form. 

Signing a Bill. When the bill is passed by both Houses 
it is signed by the presiding officer of each, and sent to 
the President or Governor, as the case may be, for his 
action. 

Executive Veto. If the Executive approves the bill it 
becomes a law. If he disapproves it, he returns it to the 
Legislature with his objections. This defeats the meas- 
ure, unless it is passed by each House by a two-thirds 
vote ; in which case it becomes a law without the approval 
of the Executive. 

Legislative Committees. There is very little in Ameri- 
can constitutions regarding legislative committees, but 
nevertheless these are very important factors in legisla- 
tion. They are appointed by the presiding officer of each 
House. This gives to such an officer very great powers. 
He knows what matters are engaging the attention of the 
public, and he can anticipate with reasonable certainty 
the nature of the important bills which will be introduced. 
He also knows the party connections of all the members, 
and in many instances their personal attitude toward the 



Principles of Government 35 

important issues likely to arise. He can easily so organize 
the respective committees before which these measures 
will come as to have a majority in favor of the side which 
he wishes to prevail. As no bill can become a law until 
it has been reported on by a committee, and as a favor- 
able report is very helpful to a bill and an unfavorable 
one almost fatal to it, the power of selecting the commit- 
tees is a very great and far-reaching one. 

In the ease of the Speaker of the House of Represen- 
tatives in Congress it is perhaps the greatest power re- 
garding legislation possessed by any one man in our 
Government. The power of the committees is also very 
great, but this is usually exercised as the presiding officer 
appointing them and his party desire that it shall be. 

Executive Department. The Executive Department 
consists of the Chief Executive officer, who, in the United 
States Government is called the President, and in the 
States, the Governor, and of numerous assistants. 

To prevent vacancies in the office of the Chief Execu- 
tive, a second officer is chosen who will come into the 
office upon the death, resignation, or removal of the first. 
In the United States he is called the Vice President, and 
in the States, the Lieutenant Governor. 

It is the duty of the officers of this Department to see 
that all laws passed by the Legislature are obeyed. This 
is especially true after laws have been construed and 
applied by the courts to particular persons. These of- 
ficers also carry on the business operations of the Gov- 
ernment. 

In the United States. In the United States Government, 
the Executive Department is subdivided into nine 
branches, which are themselves called Departments. The 
officers in charge of these Departments, respectively, are. 



36 Civil Government 

the Secretary of State, the Secretary of the Treasury, 
the Secretary of War, the Attorney General, the Post- 
master General, the Secretary of the Navy, the Secretary 
of the Interior, the Secretary of Agriculture, and the 
Secretary of Commerce and Labor. The general nature 
of each of these Departments is indicated somewhat by 
the title of the officer in charge of it. Together these 
officers constitute the President's Cabinet, and are his 
general advisers in the various matters pertaining to 
the Executive Department of the Government. 

There are also numerous subordinate executive officers 
in each of these subdivisions of the Departments. 

In the States. In the State Governments the heads of 
Departments usually consist of a Secretary of State, a 
Comptroller, an Attorney General, a Treasurer, and 
others who have charge of important parts of the work- 
ings of the State Government. It is not customary to 
give to them any collective name. 

Besides these, there are numerous county officers who 
belong to this department, such as County Treasurers, 
County Clerks, Sheriffs, Assessors, and Collectors of 
Taxes, etc. 

Judicial Department. It is the duty of the Judicial 
Department to decide what is law, interpret legislative 
enactments, and apply the general rules of law to individ- 
ual cases; thus to determine the rights and duties of 
particular persons. The tribunals through which this is 
done are called Courts. 

Judicial System. Every sovereign finds it desirable, 
if not necessary, to establish a number of different courts, 
having different powers. All of these courts, and all of 
the judges and other officers of these courts, constitute 
the Judicial Department. 



Principles of Government 37 

Inferior Courts. Many differences over small matters 
arise in every neighborhood. Their decision does not call 
for much ability or learning. The chief object is to get 
them settled quickly and cheaply, so that they will not 
develop discord. To do this a class of local courts is 
provided, in which a speedy trial can be had before some 
one in whom all the parties will likely have confidence. 
These are usually called Courts of Justices of the Peace. 

Higher Trial Courts. Other courts are provided for 
the trial of cases of more importance. These courts usu- 
ally sit at the county seats of the counties. There is more 
trouble, delay and expense involved in trials in them. 
Both these classes are called Trial Courts, or Courts of 
Original Jurisdiction. 

Appellate Courts. Another class of courts, called Ap- 
pellate or Revisory, is created to rehear cases which have 
been tried in the courts of original jurisdiction. These 
courts usually, if not always, have a number of judges, 
who are selected with care, and are men of exceptional 
ability and learning. 

Officers Composing Trial Courts. Trial courts consist 
of a presiding officer, who is called the Judge, and who 
has general control over the court and its other officers; 
of a Clerk, who keeps the records, and issues all the writ- 
ten orders of the court; of a Sheriff and his deputies, 
who enforce the orders of the court ; and of persons who 
are brought in from the properly qualified citizens who 
reside in the community in which the court is held, and 
who are made to do service as Jurors. 

Parties. The persons who bring law-suits are called 
Plaintiffs, and those against whom they are brought are 
called Defendants. The plaintiff always wants the court 
to give him relief against the defendant, and the defend- 
ant resists the granting of such relief. 



38 Civil Government 

Procedure in Trial Courts. The procedure in trial 
courts stated very briefly is this: the plaintiff states to 
the court the facts which he thinks entitle him to its 
assistance. The defendant is then brought before the 
court and states the reasons why the plaintiff ought not 
to have any relief against him. These statements by the 
parties of the matters about which they differ are Plead- 
ings. In all courts of importance they are required to be 
in writing. If in these statements the parties agree as 
to the facts, but differ as to the law, this difference is 
decided by the judge. If the parties agree as to the 
law, but differ as to the facts, this is decided by a jury. 
If they differ as to both, the judge decides the law 
points, and the jury the facts. The judge is supposed 
to know the law, but he does not always do so in fact. 
The lawyers read the law to him and argue the ques- 
tions on which the parties differ. The facts are not known 
to the jury when the trial begins; hence the parties call 
in witnesses and have them testify as to what they know. 
They also bring in and have read all papers which they 
may have that show the facts of the case, so as to inform 
the jury of the real truth of the matter. This testimony 
of the witnesses and these papers are called Evidence. 

The judge always decides what can be brought before 
the jury as evidence. He also gives the jury the rules 
of law to govern them in deciding as to the facts, and 
by which to determine the legal effect of the facts after 
they are ascertained. This statement of the law to the 
jury by the judge is called a Charge. After the jury 
has decided the facts, they report their conclusions to 
the judge. This conclusion is called a Verdict. The judge 
then decides the case by applying the general rules of 
law to the facts as found by the jury. This decision by 



Principles of Government 39 

him is called a Judgment or a Decree. It is written by 
the clerk in the minutes of the court. 

Motions for New Trial. If the party against whom 
the judgment is rendered thinks the case has not been 
tried according to law, he asks the judge to set the judg- 
ment aside, and retry the case. 

Procedure in Appellate Courts. If the judge w T ill not 
grant the new trial, the party can take the case up to 
an Appellate Court. If he does this, he has the clerk to 
make out a true copy of the record which has been kept 
of all that has been done in the trial court, and takes this 
to the Appellate Court. He there files a brief pointing 
out the errors in the trial below. The other side may 
also file his brief. The Appellate Court examines the 
record and briefs, and if it finds that any substantial 
mistake has been made in the trial of the case, it either 
decides it as the trial court should have done, or sends 
it back to that court for retrial, advising the court how 
to proceed in it. If it does not find any error, it affirms 
the judgment. 

Effect of a Judgment. When a case has been finally 
decided, the Judgment settles all the questions of law and 
fact which were submitted to the court, so far as the 
plaintiff and defendant are interested in them. That is, 
a judgment of a court, as between the parties to a suit, 
settles all the matters in dispute in the case in which 
the judgment was rendered. 

Enforcing a Judgment. If the party against whom the 
judgment is rendered does not obey it, the party in whose 
favor the judgment is gets the clerk to issue a written 
order to the sheriff commanding him to compel the los- 
ing party to obey. 

Benefits of the Separation of the Departments. The 



40 Civil Government 

division of power among the different departments of 
government is one of the most effective of the " checks 
and balances of power" in our American institutions. If 
the same officer or set of officers w T ere authorized to 
make, interpret, apply and enforce the law, this would 
be practical tyranny. Officers, by whatever name called, 
having such powers could oppress those subject to them 
without any possibility of relief. Fair and reasonable 
division of power among the several officers who dis- 
charge the functions of sovereignty is one of the chief 
safeguards of the liberty of the people. 

Impossibility of Complete Separation. As desirable as 
this separation of power is, it can never be complete. 
Some powers are of such nature that, under different 
circumstances, they must be exercised by officers in each 
department. There are others whose general exercise is 
entrusted to one department, but which upon special oc- 
casions arising in some other department must be exer- 
cised by officers belonging to the latter. In a few cases 
it is conducive to the general good for officers of dif- 
ferent departments to co-operate in the performance of 
the same act. Though all this is true, still there may be 
separation of power extending far enough to afford sub- 
stantial security against official oppression. 

Examples of Incomplete Separation. An example of 
a power which must be exercised by each department is 
found in passing on the constitutionality of a statute. 
Every officer in every department is sworn to support 
the Constitution of the Government which he serves. 
When a bill is introduced in the Legislature each mem- 
ber must consider its constitutionality, and if he thinks 
the bill contrary to the Constitution, it is his duty to 
vote against it. If a majority of the members of each 



Principles of Government 41 

House vote in favor of any bill, this is a declaration by 
them that in their opinion it conforms to the Constitu- 
tion. The act must then be sent to the Governor of the 
State for his action. If he thinks it is unconstitutional 
it is his duty to veto it. If he approves the act, this is 
a declaration by him that he regards it constitutional. 
After this the act with the Governor's approval is pub- 
lished as law. Later there arises in court a case in which 
one of the parties claims rights under this statute. The 
case comes up for trial, and the party relying on the 
statute presents it to the court as the basis of his claim. 
The other party contends that the statute is contrary to 
the Constitution and is consequently void. This is the 
very question which the Legislature and the Governor 
have passed upon, but it is the judge's duty to support 
the Constitution, and to enforce no statute which is con- 
trary to it. He must take the question up for himself 
and decide upon it before he can determine the legal 
rights of the parties to the suit. Here officers of each 
department have passed upon the same question, viz. : is 
the act consistent with or contrary to the Constitution? 
The statement also contains an example of officers of 
two departments co-operating in the performance of the 
same act, as both the Legislature and the Governor take 
part in making the proposed bill a law; the Legislature 
by passing it, and the Governor by approving it. 

RECAPITULATION. 

American Governments are divided into three Depart- 
ments, Legislative, Executive, and Judicial. 

The Legislative Department has two branches, called, 
respectively, the Senate and the House of Representatives. 

A bill to become a law must be passed by a majority 



42 Civil Government 

vote in each House, and must then be approved by the 
Chief Executive, or passed over his veto. 

The Executive Department of the United States Gov- 
ernment consists of the President, his Cabinet, and their 
subordinates. 

The Executive Department of the States consists of 
a Governor, Lieutenant Governor, Secretary of State, a 
Comptroller of Public Accounts, a Treasurer, an Attor- 
ney General, or similar officers; and of numerous local 
officers, called by different names in different States. 

The tribunals through which the judicial powers of 
a government are exercised are called courts. 

Courts are of several classes. Some have original and 
some appellate jurisdiction. 

All the different classes of courts maintained by a 
government are its judicial system. 

The jurisdiction of a court is its right to hear and de- 
cide cases. "Within its jurisdiction its decisions are valid. 
When acting outside of its jurisdiction its decisions are 
void. . 

The officers composing courts are judges, clerks, sher- 
iffs, who are sometimes called marshals or constables, 
and jurors. 

The procedure in trial courts includes pleading, cita- 
tion, impanelling juries, introducing witnesses, argument 
of counsel, charging the jury, returning verdict by the 
jury, rendering, entering and enforcing judgments. 

A judgment of a court is a final decision settling the 
rights and duties of the parties to a suit as to the mat- 
ters about which the suit is brought. 

The division of the powers of government is one of the 
greatest assurances of our institutions and liberties. It 
is not possible to entirely separate the different depart- 



Principles of Government 43 

ments and their powers, but this is done in our American 
governments sufficiently to accomplish the ends designed. 

QUESTIONS. 

I. 1. What are the three departments of government in de- 
mocracies? 2. Give the general duties of each. 

II. 1. Of what does the legislative department consist? 2. 
State the manner of procedure in introducing and passing a bill 
in the Senate or the House of Eepresentatives. 3. What power 
has the President or Governor over a bill when passed? 4. Dis- 
cuss legislative committees. 

III. 1. Of what officers does the Executive Department con- 
sist in the Federal Government? In the State Government? 

IV. 1. Of what does the Judicial System consist? 2. Dis- 
cuss the duties, jurisdiction, and procedure in inferior courts, in 
higher trial courts, and in appellate courts ? 3. What is the 
effect of a judgment? 

V. 1. Why is it necessary to separate these different depart- 
ments of government? 2. Is this separation complete? 



CHAPTER V. 

THE IMPORTANT POWERS AND DUTIES OF SOV- 
EREIGNTY AND GOVERNMENT. 

As governments are organized to exercise the powers 
and discharge the duties of sovereignty, we may con- 
sider their powers and duties together. 

The Duty of Self-Protection and Perpetuation. The 
most imperative duty of sovereignty is to protect and per- 
petuate itself. This is so because it precedes all others, 
and because neglect of it totally incapacitates for the 
discharge of any other. A dead sovereign cannot exer- 
cise any power or discharge any duty. 

Dangers of War and Insurrection. The dangers to 



44 Civil Government 

which sovereignty and governments are exposed are both 
external and internal. They may be attacked by other 
sovereignties from without, as in case of foreign war; 
or they may be endangered by disturbances within. 
The external attacks are wars. The internal disturb- 
ances, if made by force and contrary to the constitution, 
are insurrections or rebellions. If a rebellion proves suc- 
cessful, it becomes a revolution. 

Military Organization. Sovereignty, in making its 
plans of government, must anticipate and provide for 
these attacks. It must devise some methods by which it 
may oppose and overcome them. This always requires 
force. Hence every government is given power to raise 
and maintain armies. 

Standing Army. It is usual to support continuously 
a relatively small number of men, fully organized and 
equipped, and trained to render military duty on short 
notice. These constitute the Standing Army, and are used 
both for immediate defense and as a nucleus around which 
a larger army can be formed in case of need. The men 
in the regular army give all their time to military af- 
fairs, and being necessarily cut off from all other occu- 
pations cease to be productive, and become an expense 
to the government. 

Militia. It is also usual to make provision for a less 
organized body, called the Militia. This is composed of 
men who in times of peace pursue the ordinary occupa- 
tions of life, but who are formed into military companies, 
regiments, etc. They meet from time to time for drills 
and other military exercises, and thus secure valuable 
training in military matters. The purpose of the Militia 
is to have reserve force reasonably well organized and 
equipped, which will be ready to respond promptly to 



Principles of Government 45 

any call that may be made upon it, and which can ren- 
der at once efficient service. In addition to these two 
military organizations, all of the able-bodied males, who 
are subject to a government, are bound to obey its call 
for assistance, and may be enlisted in its war-forces for 
such time as may be necessary to protect it from either 
external or internal foes. 

Administration of Civil Government. Important as is 
the military organization which we have just considered, 
it is not an end or purpose of government, but only a 
means of effecting an end. The real purposes of govern- 
ment is to protect and secure the just rights and liber- 
ties of those governed, and sovereignty maintains its mil- 
itary power in order to enable it to sustain its govern- 
ment in the accomplishment of these ends. 

Necessity for Civil Officers. Just rights and liberties 
can only be secured by making and enforcing just laws, 
and this, as we have seen, is best done by the organization 
of the three general departments of government. To be 
effective, these must be equipped with sufficient number of 
officers with well defined powers and duties. This neces- 
sitates the employment of some method or methods by 
which to select these officers and put them into office. 
This selection is always made directly or indirectly by 
the sovereign power maintaining the government. 

Methods of Selection in Monarchies. In case of abso- 
lute monarchies, the ruling monarch selects as his suc- 
cessor some relative, usually a son or other next of kin, 
whom he appoints to receive his power upon his death. 
The monarch, during his life, fills all other offices as he 
sees fit. In constitutional monarchies the manner of se- 
lecting officers depends on the constitutional rules on 
that subject. Usually there are three methods: inheri- 



46 Civil Government 

tance, appointment by the monarch, and election by the 
people. 

Methods in Aristocracies. In aristocracies the right 
to succeed to place in the governing body is sometimes 
hereditary, and sometimes vacancies are filled by selec- 
tion made by the surviving members of the governing 
body. 

Methods in Democracies. In republican governments 
there are two methods of selecting officers. One is by 
vote of the qualified electors; the other is by appoint- 
ment made by other officers who have already been se- 
lected and installed in office. Usually the terms of office 
are limited to a definite period, but sometimes they con- 
tinue during the life of the officer. In either case the 
officer is subject to removal for sufficient cause. 

Power to Raise Money Generally. These various op- 
erations, whether military or civil, are expensive. To 
meet these expenses the government must have the power 
to raise money. The power by which money usually is 
raised to meet the ordinary expenses of running the gov- 
ernment is that of taxation. This will be treated in later 
paragraphs. 

Power to Impress Property. In times of war the gov- 
ernment sometimes resorts to the more vigorous meas- 
ure of taking property which is needed for military use. 
This is called impressing it. In the great majority of in- 
stances in which this power is exercised the property of 
only one person or a small number is taken, while others 
having similar property are left undisturbed. The gov- 
ernment usually recognizes the inequality of this process, 
and either restores the property to the owner, after its 
use is no longer necessary, paying him for any damage to 
it; or, if this cannot be done, it makes compensation for 



Principles of Government 47 

its full value. This is only a means of procuring supplies 
for immediate use in cases of emergency, and the money 
for reimbursing those whose property is taken must be 
raised by taxation. 

The Power to Tax. The means by which governments 
ordinarily procure money with which to maintain them- 
selves and carry on their operations is taxation. A tax 
is a sum of money which the government requires per- 
sons or things subject to it to pay into the public treas- 
ury for the use of the government. The benefit secured 
by the tax-payer is the protection afforded to his person 
and property, or the privilege of doing some act which 
the government has the right and power to prohibit or 
regulate, or both of these benefits. 

Subjects of Taxation. The power of taxation is very 
extensive, embracing all persons subject to the govern- 
ment, all kinds of property, all acts and occupations 
which cannot be performed or engaged in as of common 
right, and all acts or occupations which are peculiarly 
within the control of the government imposing the tax. 
A government can only tax those persons, things, acts 
or occupations which are subject to its jurisdiction. 

Direct and Indirect Taxes. The largest division of 
taxes is into direct and indirect. Direct taxes are those 
which are to be paid by those upon whom they are 
levied without any opportunity for their reimbursement 
from any other source. Indirect taxes are those which 
are imposed upon persons with the knowledge of the 
taxing officers that those paying the tax may reimburse 
themselves from others, and with the expectation that 
they will do so. Direct taxes include poll taxes, taxes 
on land, taxes on incomes, and inheritance taxes. All 
other taxes, such as occupation taxes, licenses, import 



48 Civil Government 

duties, and similar charges, are indirect, since those by 
whom they are paid always have it in their power to 
reimburse themselves from some other person who there- 
after deals with them concerning the thing or business 
affected by the tax. 

Other Classes of Taxes. Taxes are also divided into 
numerous other classes. Those imposed on persons are 
called poll taxes. Those imposed on property in propor- 
tion to its value are called ad valorem. Those charged 
for the import or export of goods are called duties, cus- 
toms, or imposts. The term tariff is frequently used for 
import taxes. It may be that the word should be lim- 
ited to the list of goods and the rates of the taxes im- 
posed upon them, but the tax itself is often called by 
this name. Occupation taxes are charges made for the 
privilege of following an occupation or business. These 
are frequently called licenses or excises. Income taxes 
are those imposed on annual receipts or incomes. In- 
heritance taxes are those placed upon the passing of 
property on the death of an owner to his heirs or to 
those to whom he has given it by will. 

Purposes for Which Taxes May be Imposed. Taxes 
can only be imposed for public purposes. However com- 
plete the power of the government may be to raise money 
for its own protection, operation and support, it has no 
just authority to take money from one person and give 
it to another, or to apply it to any private purpose. This 
would not be taxation, but in effect robbing one person 
for the benefit of another. What are public and what 
private purposes it is often difficult to determine ; but this 
only affects the application of the doctrine announced, 
not its correctness or validity. 

Apportionment of Taxes. Tt is a well established po- 



Principles of Government 49 

litical principle that taxes should be equal and uniform. 
That this is both just and desirable all will admit, but 
no plan has as yet been devised by which it can be fully 
accomplished. As far as this doctrine can be enforced 
practically is to so regulate taxation that it will bear 
uniformly on all persons, things, or acts subject to its 
operation which are substantially of the same charac- 
ter. It is not required that there shall be uniformity or 
apparent equality in the taxes imposed upon subjects of 
different kinds. 

Imposition and Apportionment of Taxes are Legisla- 
tive Powers. "What shall be taxed and the amount to be 
obtained by the tax, and how this shall be distributed 
among the different subjects of taxation, are matters for 
the legislative department of the government to deter- 
mine. If the sovereign desires to limit the power of 
this department in these respects, it must provide for this 
in the constitution: otherwise the general grant of legis- 
lative power carries with it full discretion as to the sub- 
jects of taxation, the amount to be raised, and how it 
shall be apportioned. The only limitations on the legis- 
lative power in such cases would be found in the nature 
of the taxing power, and the matters over which the 
sovereign granting the power has jurisdiction. 

In imposing taxes the Legislature usually goes no fur- 
ther than to specify the subjects on which the tax is 
laid and the amount of the tax or the percentage on the 
value to be paid. The detailed application of these gen- 
eral laws to the particular persons, things, and occupa- 
tions, etc., to be taxed, is left to other officers. Ordi- 
narily these officers are local, but occasionally the fixing 
of values of certain kinds of property and estimating 
4 



50 Civil Government 

the amount to be paid upon it are entrusted to State 
boards or commissions. 

Assessment of Taxes. The process of applying the gen- 
eral tax laws to particular persons, things, and occupa- 
tions, and estimating the amount of tax due from each, 
and properly tabulating or listing these facts, is called 
assessing taxes. It is a work of importance and fre- 
quently of considerable difficulty. The object in requir- 
ing taxes to be equal and uniform is that every one shall 
contribute his just proportion of money to the support 
of the government. If the Legislature fixes a tax at a 
certain rate on the value of all property subject to the 
tax, this will not secure uniformity unless all this prop- 
erty be valued on a uniform basis. It is impossible for 
the Legislature to know such values, so it requires the 
officers making assessments to ascertain as nearly as 
they can the fair value of all property assessed, and to 
base the assessment on the value thus ascertained. 

Boards of Equalization. But, fearing that mistakes 
may occur in doing this, and that one man's property 
might be valued higher or lower than similar property 
belonging to others, it is customary to provide for boards 
of equalization, whose duty it is to examine all the as- 
sessments made in their district or county, compare the 
different assessments, hear complaints as to them, and 
then to make such changes as will make the taxes uniform 
and fair, if any changes are required for that purpose. 

Assessment Rolls. The list of property belonging to 
each taxpayer, its value, and the amount of taxes due 
on it, is called an assessment ; and all these lists in a 
county or precinct or city, taken together, are called an 
assessment roll. 

Collection of Taxes. The collection of taxes is regu- 



Principles of Government 51 

lated by general laws. These usually provide that some 
county officer shall make collections in his county for 
both the State and the county. After the assessment 
rolls are completed by the assessor and the board of 
equalization, they are then placed in the hands of the 
proper collector. He is charged with the amount of 
taxes shown to be due by the rolls. He proceeds to 
collect the taxes as rapidly as possible, and as he makes 
collections, he pays the money over to the State or county 
treasurer, taking receipts therefor. 

Taxes as Charges on Property Against Which They 
are Assessed. Taxes are charges on the land on which 
they are assessed, and if any land taxes are not paid by 
the owners, the land can be sold by the government for 
the money to pay them. Taxes on personal property 
are not charges on such property, but if they are not 
paid, suit can be brought for them and after a judgment 
is obtained the property on which the taxes were levied, 
or other property belonging to the tax-payer, may be 
taken and sold as in the case of other debts. 

Settlement by the Tax Collector. When the tax col- 
lector or other officer collects taxes, it is his duty to pay 
it over to the Comptroller of the State or treasurer of 
the county or city, as the case may be. When he has 
collected all that he can, he brings the rolls before the 
proper officer, usually the county commissioners court, 
for county taxes, and the State Comptroller for State 
taxes, shows the amount still uncollected and the reason 
for his failure to collect it, and then accounts for the 
balance; that is, he produces receipts from the proper 
officers for all that has been collected, or pays over the 
money. 

The Comptroller pays the money belonging to the State 



52 Civil Government 

over to the State Treasurer, and it can be paid out by the 
Treasurer only in accordance with the general rules of 
law. 

Appropriation of Public Money. The Legislature also 
determines for what public purposes the public funds be- 
longing to the State are to be expended, and apportions 
these funds among these different purposes. This process 
of providing for the disbursement of public funds is 
called appropriation. It is a fixed rule of American law 
that no money can be paid out of the public treasury ex- 
cept in pursuance of an appropriation made by the Legis- 
lature. 

Local Taxation. The local subdivisions of government 
are also expensive. Raising revenues for these is regu- 
lated by general laws. Usually these laws confer upon 
the appropriate local officers the power to levy, assess, 
and collect taxes on the same subjects that are taxed 
by the State, limiting the amount of such taxes so that 
they cannot exceed a specified proportion of the State 
taxes. 

Assessment and collections for county purposes are 
usually made in the same manner, by the same officers, 
and at the same time, as for the State. Therefore what 
has been said on that subject will in the main apply 
here. 

Other Sources of Revenue. Taxation is the regular 
and usual method of raising money for governmental 
purposes, but the State sometimes has other resources. 
All public lands belong to the sovereign. In some parts 
of the United States the States acquired lands before 
they came into the Union. In such cases the title to 
these lands remained in the respective States, unless they 
ivere ceded to the United States. In other sections of 



Principles of Government 53 

the country the territory was acquired by the United 
States before the States were organized. In these cases 
the title to the lands remains in the United States. The 
income from these lands and the proceeds from their sale 
belong to the government owning the lands. 

Borrowing Money. Governments may borrow money, 
but this is only a temporary expedient, which must ul- 
timately be paid for by taxation, and hence, however 
beneficial and important it may be, is not to be regarded 
as a real source of income. 

Eminent Domain. Another power of sovereignty, 
which it exercises through its governmental agencies, is 
that of eminent domain. This is the power to take prop- 
erty which belongs to private persons, and apply it to 
public use. It differs from taxation in that it acts upon 
particular property and takes the whole of the thing 
needed from the owner, while in taxation an assessment 
of a small proportion of its value payable in money is 
made against the owners of all the property liable to the 
tax. If a person owns property worth $1,000 which the 
public needs, it may be taken under the power of emi- 
nent domain. The whole loss falls on the owner, and 
the public has thus been enriched, not at the cost of all, 
but of a single individual. This is manifestly unjust. 
The owner must be reimbursed by paying him from the 
public funds the fair value of the property taken. If 
the government needs $1,000 in money and desires to 
procure it by taxation, it levies a small tax on all the 
property within its jurisdiction. Bach owner pays only 
his pro rata share. This bears uniformly on all. There 
is no need to reimburse any one of those who have paid 
the tax, nor could this be done, for the money to pay to 
them would have to be collected from them, so it would 
be but going around a circle. 



54 Civil Government 

The power of eminent domain may therefore be de- 
fined as the power in the government to take private 
property and apply it to public use upon payment to the 
owner of its fair value. 

This value is determined by disinterested persons se- 
lected for that purpose. This power is very important. 
It enables the government to supply itself with the means 
of discharging its duties to the public at just and rea- 
sonable cost, and relieves it from the necessity of paying 
exhorbitant charges. Under this power sites to build 
court houses, public school houses, and other buildings 
needed by the public, are acquired; rights of way for 
railroads and telegraph lines are obtained, and property 
necessary for other public utilities is secured. 

Police Power. Perhaps the most important of the 
named powers of government is that under which it 
makes laws for the protection and preservation of "the 
health, safety, and morals of the -people." It is under 
this power that most governmental action is taken. It- 
covers all legislation designed and reasonably calculated 
to protect the public health, secure the public safety, or 
guard the public morals. There is no way to catalogue 
and describe all the different kinds of conduct which may 
endanger one or the other of these, and hence there is 
no way to enumerate the different laws which may be 
or become desirable in protecting against such conduct. 
Hence it is not practicable to define this power more 
definitely than is done at the beginning of this section. 

The state cannot part with its police power, nor bind 
itself by agreement not to exercise it. The safety, health, 
and morals of the people are too important to admit of 
this. Government being organized mainly to protect 
these rights of the people, it would defeat its own pur- 



Principles of Government 55 

poses if it were permitted to bind itself by agreement 
or otherwise not to do so. 

General Powers. Beside these powers which have been 
thus separately dealt with, there are the general legis- 
lative, judicial, and executive functions, which are exer- 
cised in the ordinary operation of government. These 
have been already dealt w T ith to sufficient extent for this 
part of our study. 

RECAPITULATION. 

The first duty of sovereignty and of government is to 
protect itself so as to enable it to meet its other duties. 

Military organizations are necessary to protect govern- 
ments. They consist of standing armies and of militia. 

The true purpose of government is to secure the just 
rights and liberties of those governed. 

There can be no liberty without just laws. Laws can 
only be made and enforced in democratic governments 
through officers. 

The usual method of selecting officers in democracies 
is by direct vote of the people. 

Government must have power to raise money. 

A tax is a sum of money which the government re- 
quires those subject to it to pay into the public treasury 
for the use of the government. 

All things, persons, and occupations subject to a gov- 
ernment may be taxed by it. 

Direct taxes are those which are paid by the person 
against whom they are assessed without opportunity to 
reimburse himself. 

Indirect taxes are those for which the person paying 
them can reimburse himself from others. 

Poll taxes are taxes imposed on persons as such. 



56 Civil Government 

Ad valorem taxes are those imposed on property ac- 
cording to its value. 

Imposts or customs or tariffs are charges made by the 
government for permitting goods or commodities from 
other countries to be brought into this country. 

Excise or license taxes are charges for pursuing cer- 
tain occupations, or doing certain business acts. 

Taxes can only be imposed for public purposes. 

Taxes should be equal and uniform. This cannot be 
done absolutely, but laws levying taxes should attempt 

it- 
Imposing and apportioning taxes are a legislative func- 
tion. A State Legislature can exercise its own discretion 
in taxation, unless restricted by the Constitution of the 
United States or by that of the State. 

Assessing taxes is ascertaining what persons and prop- 
erty are subject to taxation, and estimating the amount 
due by each person. 

Persons collecting taxes or handling public money in 
other ways are held to strict account. 

Public lands and the income from them, and the pro- 
ceeds of their sale, belong to the government. 

The power of eminent domain is the power to apply 
private property to a public use upon paying the owner 
its fair value. 

The police power is the power to protect the health, 
safety or morals of the people. 

QUESTIONS. 

I. 1. What is the first duty of sovereignty, and what power 
is necessary to discharge this? 2. Explain the military organiza- 
tion of a government. 

II. 1. What is the real purpose of government? 2. How 
only can this be accomplished? 3. How are officers selected in 



Principles of Government 57 

monarchies and aristocracies? 4. Explain the two methods of 
selecting officers in democracies. 

III. 1. Why is the power to raise money so necessary? 2. 
What is meant by "impressment"? 3. Define a tax. 4. What 
are the subjects of taxation, or over what does a government'3 
right to taxation extend? 5. How are taxes classified? 6. Dis- 
tinguish between direct and indirect taxes. 7. What are poll 
taxes, ad valorem taxes, duties, customs, excises, occupation taxes, 
income taxes, inheritance taxes ? 8. Explain the term "tariff." 9. 
For what purposes may taxes be imposed? 10. How should they 
be apportioned? 11. What department of government exercises 
this power of taxation? 12. Explain the process of assessment 
and collection. 13. What is an "appropriation," by whom, and 
for what purpose is it made? 14. Explain the need and method 
of local taxation? 

IV. 1. What other means has a government for raising money, 
except by taxation? 2. What are public lands? 3. How may a 
government borrow money? 4. Explain the right of eminent do- 
main. 5. Why is the police power of a government so important? 
6. What other general powers has a government? 



CHAPTER VI. 

RELATION OF THE INDIVIDUAL TO SOV- 
EREIGNTY AND GOVERNMENT. 

We have already considered this subject briefly in 
some aspects, but it is desirable to treat it more in de- 
tail. It is apparent from what has already been said 
that the relation of the individual to sovereignty is not 
the same in all kinds of states and forms of government. 
It will only be necessary, however, to deal with this re- 
lation in two of these : monarchies and democracies. The 
first we will barely touch upon, but to the second we 
will give more attention. 

Definitions. Before taking up these separate treat- 



58 Civil Government 

ments, it may be well to explain some terms which will 
be needed in both. 

A Subject. A person who is governed by a monarch is 
called a subject. This term is used whether the mon- 
archy is absolute or constitutional, though it is clear 
that the actual political rights which such a person has, 
and the duties which he owes, may differ largely under 
the two forms. 

A Citizen. A person who is a constituent member of a 
democracy is called a citizen. 

Allegiance. The sum of the duties which a subject or 
citizen owes to his government is called allegiance. 

Protection. A government owes to its subjects or citi- 
zens the duty of protection. 

An Alien. An alien is one who is not a subject or citi- 
zen of the government to which his relations are being 
considered; that is, one who is not a citizen of the 
United States is an alien as to it; or one who is not a 
subject of Great Britain is an alien as to it. 

In Unitary States. As a person cannot be a subject 
or citizen of more than one unitary state at the same 
time, it is manifest that the subjects or citizens of one 
government must be aliens as to all other unitary gov- 
ernments. 

In Federal States. In a federal state there is 
dual citizenship; that is, citizenship of the federal state 
and at the same time of one of the states forming the 
federation. 

An Inhabitant. An inhabitant is one who lives within 
the territorial limits of a government, whether he be 
a subject, a citizen, or an alien. 

Residence and Domicile. A person's residence is where 
he is then actually making his home. His domicile is 



Principles of Government 59 

his permanent home. His residence and domicile may 
be, and usually are, the same, but this is not necessarily 
so. For example, a man has his permanent home in 
Austin, Texas, but he goes to Mexico on business, and 
lives there for a year. During that year his residence 
is in Mexico, but his domicile, that is, his permanent 
home, from which he is gone only temporarily, and to 
which he intends to return, is in Austin. 

Citizenship and alienage are not matters of locality, 
but of relationship to government. A citizen of the 
United States may reside abroad, and an alien to that 
government may reside within its territory. His polit- 
ical status is not changed by either fact. 

In Monarchies. In absolute monarchies the subject is 
in a condition of almost complete subjugation. He has 
no political rights. His personal and property claims 
have no permanent recognition, and may be denied at 
any time by the government without redress to the sub- 
ject. These claims are too precarious to constitute legal 
rights. 

In constitutional monarchies conditions are different. 
In some instances their subjects have as well defined and 
thoroughly protected rights of person and property, and 
their political rights are as extensive and well safe-guarded 
as in a democracy. In such cases, the terms "monarchy" 
and "subject" are simply inheritances, and the rights 
and duties of a subject are substantially the same and 
have the same recognition in law as those of a citizen. 
Hence the treatment of one to a large extent will be ap- 
plicable to the other. 

Citizenship. The United States Supreme Court has 
given several definitions of a citizen. In one case it is 
said that he "is one of the sovereign people;" in another. 



60 Civil Government 

that he is "a constituent member of the state." Each 
of these definitions embraces the idea of participation 
in sovereignty, a sharing in political power. It may be 
said that such participation to some extent is necessary 
to citizenship, but it is settled beyond controversy that 
full participation is not. It is everywhere conceded that 
minors and women may be citizens, yet women vote in 
very few of the States of the Union, and minors in none. 
It is therefore apparent that we must not adopt the idea 
that sharing in all the powers of sovereignty is essential 
to citizenship. 

We reach the same conclusion if we approach the sub- 
ject from the opposite point of view. Under the natural- 
ization laws of the United States it takes several years 
to change an alien into a citizen. He must declare his 
intention in the manner prescribed by law, and then must 
wait at least two years before he can prove his good in- 
tentions toward the Government and become a citizen 
In many of the States he is allowed to vote as soon as 
he " makes his declaration of intention, " so it not in- 
frequently occurs that a person who is in process of be- 
coming a citizen, but who is in law still an alien, may 
vote. Voting is the highest form of exercising sov- 
ereign power, hence we see that under these conditions 
one may exercise political power of the highest kind be- 
fore becoming a citizen. As, therefore, one may be a 
citizen without voting, or may vote without being a 
citizen, it cannot be that citizenship and a right to full 
participation in political power are the same. 

Perhaps we cannot define a citizen more accurately than 
to say that he is one who owes full allegiance to a re- 
public, and who is entitled to the full protection of its 
laws and power. 



Principles of Government 61 

The Sight to Vote is Derivative. The doctrine has al- 
ready been presented to you that sovereign power in a 
republic is vested in the people collectively, and not in 
each person individually; but it is so easy to become con- 
fused on this point, and the confusion actually existing 
in the minds of many is so great, that I again call the 
fact to your attention. No person has a right to vote in 
a republic simply because he has a desire to do so. Only 
those "members of the state," to use the language of the 
Supreme Court, upon whom the people in their collec- 
tive capacity have conferred the privilege, are lawfully 
entitled to vote. The qualifications which entitle to vote 
are subject to change, as the people see fit. They can 
lessen the requirements so as to entitle persons to vote 
who have not theretofore had the privilege, or they can 
increase the qualifications so as to exclude persons pre- 
viously entitled to such a right. This selection of those 
who may or may not vote is a matter of great import- 
ance. It is an exercise of sovereign power of so great 
consequence that the people reserve it to themselves, 
and do not delegate it to any of their officers. Hence 
we find that qualifications for voting are fixed in the 
Constitutions of the several States, and cannot be changed 
by legislative action, but only by amending the Consti- 
tutions. 

Allegiance. The principal duties which a citizen owes 
to a republic are to fight in its defense, contribute to 
its support, obey its laws, render to it faithful and in- 
telligent service, love its institutions, and do all within 
his power to promote its interests and welfare. The obli- 
gation to perform these duties is allegiance. The man- 
ner in which the citizens perform these duties determines 
the good or bad character of a government. 



62 Civil Government 

Protection by the Government. In return for allegi- 
ance the government owes to the citizen the duty of 
protection in all his just rights and liberties. This duty to 
protect the citizen exists not only when he is within the 
territory of the government, but also while he is abroad. 
The extent and nature of the protection differs in the 
two cases, but the duty exists in each. 

While at Home. While the citizen is at home his 
government must protect him from injury by any foreign 
foe, and must either prevent or furnish reasonable means 
for obtaining redress for any injury inflicted on him 
by the violation of his legal rights by others. 

The Sovereign Determines what shall be regarded as 
legal rights entitled to protection, and what redress 
shall be allowed for their violation, and the manner of 
obtaining it. Governments are organized principally for 
this purpose, and they fail in their design if they do not 
accomplish it to a fair extent. 

The first thing to be determined in affording such pro- 
tection is what claims made by individuals are entitled 
to it. Some of the demands might be proper, and some 
very improper. If the government were to undertake 
to protect all of these, this would result in not protecting 
any. For whenever one person made a claim it could 
be met by an opposing claim, and if the government were 
required to allow both it could enforce neither. There- 
fore some authority must judge between these opposing 
claims and decide which is entitled to protection. If 
every person were to decide upon the justice and valid- 
ity of his own claims against every one else, there would 
be endless confusion, amounting to anarchy. The deter- 
mination must be made by the sovereign, and only 
those claims which it recognizes as just and proper are 
to be upheld and protected. A claim or an advantage 



Principles of Government 63 

asserted by an individual which is recognized and pro- 
tected by the sovereign is a legal right. 

In order to afford protection to legal rights, govern- 
ments must make authoritative and continuous rules by 
which all persons are to be governed in their daily lives 
and business operations, and which its officers must apply 
in settling controversies which may come before them. 
These rules are laws. They are made by the legislative 
department. Applying the laws thus made to the claims 
of individuals and deciding which are protected and 
which are not is the exercise of judicial power, and is 
done by the judicial department. After the case is tried 
and decided, it is the duty of the executive officers to 
see that the decision of the court is carried out. 

While Abroad. While the citizen is abroad his govern- 
ment still cares for him. It does not have direct control 
over the governmental agencies maintained by other sov- 
ereigns within their own territory, and so can neither 
make laws for his security, nor directly enforce the rules 
which do exist there for his protection. Still, it exerts 
its authority to see that he is not interfered with in his 
life, liberty, or property, contrary to those generally ac- 
cepted customs and rules which are known as inter- 
national law. These rules all civilized nations are pre- 
sumed to recognize and conform to, and if they are vio- 
lated by one government or its citizens to the injury of 
a citizen of another, the government of the injured per- 
son presents the grievance to the other government for 
adjustment. Ordinarily it is settled amicably, but if it 
is not, and the injury is serious and is clearly established, 
the government of the one injured may declare war 
against the other and thus force redress. 

How Citizenship is Acquired. When a republic is or- 
ganized all persons within its territory are presumed 



64 Civil Government 

to take part in it, and to become citizens. This may be 
shown to be untrue as to any particular person, or those 
organizing the government may exclude by special ac- 
tion certain persons or classes of persons from the ben- 
efits of citizenship. Children of citizens are citizens by 
reason of that fact, no matter whether born within the 
territory of the government or abroad. A child of an 
alien born within the territory of a republic is also a 
citizen unless at the time of the birth the parent is a 
representative of a foreign government. A citizen of 
one of the Unites States may become a citizen of any 
other of the States, simply by changing his domicile to 
the latter. An alien may become a citizen by natural- 
ization; that is, by becoming a resident of the United 
States, declaring his intention to become a citizen in the 
manner provided for by law, remaining in the United 
States a designated time, and in open court renouncing 
allegiance to his former sovereign and taking the oath 
of allegiance to the United States. 

All persons who have not acquired citizenship in one 
or the other of these ways are aliens. 

Citizenship and Allegiance in Confederations and Fed- 
eral States. So far, what we have said has not taken into 
account the difficulties which arise in connection with 
citizenship in confederations and federal states. When 
a number of unitary states combine into a confederation, 
questions as to citizenship and allegiance can scarcely 
be said to arise. The confederation being but a com- 
bination or partnership of states, not resulting in the 
creation of a new state, there can be no relations be- 
tween the citizens of the contracting states and the con- 
federation. 

When, however, the combination results in the crea- 
tion of a new federal state, very difficult questions are 



Principles of Government 65 

involved. These questions are closely related to those 
which we have considered in connection with sovereignty 
and its division. When one sovereign has jurisdiction 
over a person and is justly entitled to his obedience as 
to certain matters, and another has jurisdiction over 
him and is justly entitled to his obedience as to other 
matters, he may well be in doubt as to where his allegi- 
ance is due. This exact question does not appear to 
haye been decided. There are, however, numerous au- 
thorities on the question presented from the other side; 
that is, of what government is such a person a citizen. 
The Constitution of the United States and acts of Con- 
gress thereunder, the several State Constitutions and stat- 
utes thereunder, the Supreme Court of the United States 
and of the several States, all recognize and declare that 
such a person is a citizen of each of the governments. 
That is, dealing with the matter in a concrete case the 
same person is at the same time a citizen of the United 
States and of the State of his domicile. As a citizen of 
the United States he owes support, obedience, service 
and love to it, and it owes protection to him so far as 
it has control over him and his affairs. As a citizen of 
his State he owes support, obedience, service and love 
to it, and it owes protection to him so far as it has con- 
trol over him and his affairs. As the States are proved 
by the war to be joined in an indissoluble Union, theo- 
retically there can come up no controversy between the 
State and the Union, and the question presented by 
secession, as to which government the citizen owed al- 
legiance, cannot arise. If it ever does arise practically, 
it will probably be settled by appeal to arms. 



66 Civil Government 

RECAPITULATION. 

In absolute monarchies the subjects do not have legal 
rights. In constitutional monarchies they do. 

Citizenship entitles to full protection from the govern- 
ment. 

Partial participation in political power is essential to 
citizenship, but full participation is not. 

In a republic the people collectively determine who 
shall vote. 

A citizen may be denied the right to vote, while one 
who is not a citizen may be given that privilege. 

Allegiance is the sum of the duties which a citizen 
owes his sovereign. 

The sovereign protects its citizens while at home by 
defining and securing their rights by law. 

The sovereign determines what claims and privileges 
shall be protected by law. 

A legal right is a claim or privilege which is recog T 
nized and protected by law. 

Rules made by sovereignty to be observed by those 
subject to it, and the violation of which is punished, 
are laws. 

A government protects its citizens while abroad in 
those rights which are recognized by international law. 

A person may acquire citizenship in any one of three 
ways, (1) by being an inhabitant of a country when a 
republic is formed, (2) by birth within the jurisdiction 
of a republic, or (3) by naturalization. 

There can be no citizenship in a confederacy. In a 
federal state there is dual citizenship, first, in one of 
the states uniting in the federation, and second, in the 
federation. 

A person sustaining this double relation owes alle- 



Principles of Government 67 

giance to each sovereign as to the matters over which it 
has jurisdiction. 

As federations are created by written agreements, there 
should never be any occasion for the individual to choose 
between the two sovereigns. 

If a conflict should arise between the two sovereigns, 
the individual should support the one which is acting in 
accord with the federal agreement. 

QUESTIONS. 

I. 1 Define a subject; a citizen; an alien. 2. What is alle- 
giance, and what does a government owe in return for it? 3. 
Define an inhabitant. 4. Distinguish between residence and domi- 
cile. 5. Upon what does citizenship or alienage depend? 

II. 1. Why cannot a subject of an absolute monarchy have 
legal rights? 2. Why does a subject of a constitutional mon- 
archy have such rights? 

III. 1. What is the Supreme Court's conception of citizenship? 

2. Discuss fully the question as to whether or not citizenship and 
a right to participate in political power are the same. 3. What 
is meant by saying that political power is inherent in the people 
collectively? 4. In a republic from whom is the right to vote 
derived, and by whom may it be exercised? 

IV. 1. What are the principal duties which a citizen owes to 
a republic? 2. By what is the good or bad character of a gov- 
ernment determined? 3. Over what rights and claims does a gov- 
ernment's duty to protect its citizens extend? 4. How are just 
claims for protection determined? 5. By what means does a gov- 
ernment protect its citizens at home? 6. Define a legal right; a 
law. 7. What is the process used in protection of legal rights? 8. 
In what way and to what extent is a citizen protected while abroad? 

V. 1. In what three ways may citizenship be acquired? 2. 
What is meant by birth within the jurisdiction of a government? 

3. Explain the process of naturalization. 4. Why is there no 
citizenship in a confederation? 5. Explain the dual citizenship 
in a federal state, and the extent of allegiance owed to each 
sovereign. 6. What tends to prevent contending claims from 
arising between these two sovereign powers? 7. In case of con- 
flict, which power is it the duty of the citizen to uphold? 



68 Civil Government 

CHAPTER VII. 

POLITICAL PARTIES. 

Necessary in Republics. In a republican government 
under a written constitution political parties are nec- 
essary. In such a government it is public opinion which 
controls, and this opinion must express itself according 
to constitutional methods. One of the principal advan- 
tages of a written constitution is to protect the minority 
against sudden and impulsive changes of opinion on the 
part of the majority. Under constitutional government, 
no matter how large a majority entertains an opinion, 
the minority is not bound to obey it until it has been 
made law. The processes by which this is accomplished 
are slow, and persistent co-operation by those favoring 
a policy is necessary before they can make it into law. 
This persistent co-operation is party action; and to make 
it effective, close and continuing party organization is 
necessary. 

Constitutional Issues. In a government which depends 
for all its powers on a single written instrument, ques- 
tions of governmental authority will continuously arise. 
These can be determined only by construing the consti- 
tution. 

National Issues. Such issues regarding the Constitu- 
tion of the United States arose in its preparation, became 
more sharp during the discussion as to its adoption, and 
have remained the most important and most bitterly con- 
tested of all the controversies known in our history. 

State Issues. Besides the questions as to the Federal 
Constitution and the policies of the Federal Government, 
the people of the respective States are also confronted 
with questions of local concern. Many of these neces- 



Principles of Government 69 

sarily go back to and involve the construction of the 
Federal Constitution. Always in such issues, and fre- 
quently even in those purely local, general principles 
and policies of government are involved. 

Necessity for Party Organization. Persons holding 
similar views as to the nature and functions of govern- 
ment naturally are draw T n together in their efforts to 
make those views effective. This is the origin of po- 
litical parties. As there is very close connection be- 
tween the powers of the Federal and of the State govern- 
ments, it is impossible to form intelligent political opin- 
ions which do not include the functions and policies of 
both. As a rule those who agree as to National powers 
and policies also agree as to State powers and policies; 
and, as they are substantially in accord regarding all 
the principal issues before the people, they form a politi- 
cal party in which they act in both National and State 
matters. Mere agreement among those of similar opin- 
ions accomplishes nothing. These opinions must be eon- 
verted into laws. Laws are enacted by the majority 
in Congress or in the State Legislature as the matters 
to which they relate are National or State in their na- 
ture. Congressmen and State legislators are elected by 
the people. Hence political parties need votes, and most 
of their organized effort is to procure these. 

Votes Should Express Preferences for Men as Repre- 
sentatives of Political Opinions and Measures. A number 
of men holding the same opinions and hence in the same 
party may desire the same office. If all of these are per- 
mitted to be candidates in the election in which officers 
are chosen, they will divide the vote of their party, and 
the opposition by concentrating its votes on one candi- 
date will be successful. To prevent this it is necessary 
for the party to select one of its members to represent 



70 Civil Government 

it as a candidate for each office. The person thus se- 
lected is a nominee, and all members of the party are 
expected to support and vote for him. As the nominee 
is selected from the party nominating him, he can be 
relied upon to support the measures advocated by that 
party. That there may be no misunderstanding as to 
what these measures are, the beliefs and purposes of 
the party are formulated by its constituents into writ- 
ten instruments, adopted by them. These are political 
platforms. 

Membership in Political Parties. Membership in a po- 
litical party is voluntary. Each individual determines 
for himself whether he will affiliate with any party ; and, 
if so, with which. This selection should represent the 
honest judgment of the individual as to the general wel- 
fare of the country. "When one does unite with a party 
he is expected to aid it in all proper methods in the 
advancement of its policies, and in the selection and 
election of its nominees. 

Plan of Party Organization. Party organization when 
complete extends from the voting precinct through all 
the intermediate political subdivisions of the government 
up to the Nation. The plan includes one or more official 
representatives of the party for every voting precinct 
in which the party has members, and similar representa- 
tives for every county, for every political district in 
each State in which officers, whether State or National, are 
to be elected, for each State and for the United States. 
These party representatives are known as the executive 
committees of their respective territories. They have 
charge of the interests of the party and its nominees 
within these. They call party conventions and primary 
elections, provide speakers, superintend the publication 
and distribution of party literature; in short, are the 



Principles of Government 71 

active representatives of and campaign managers for 
their party within the territory allotted to each com- 
mittee. Most of their time and energy is given to put- 
ting the party machinery into operation for the purpose 
of making nominations and adopting platforms, and in se- 
curing votes for the nominees after their selection. 

Methods of Influencing Voters. There are many 
methods by which votes may be controlled: some are 
highly commendable, and their reasonable use is a pa- 
triotic duty; some are questionable, some objectionable, 
and others outrageous. Among the proper methods are 
dissemination of correct information regarding public 
matters; fair and tolerant discussions of the facts and 
law involved in any policy, and of the results which may 
be reasonably anticipated as following its adoption; and 
appeals to the patriotism of the voters so as to increase 
their zeal. 

Among the questionable methods are affording con- 
veyances to voters in which to attend the polls ; inducing 
the uninformed and ignorant to take part in elections; 
and all similar proceedings. 

Among the objectionable methods are appeals to prej- 
udice, coloring facts, suppressing the truth regarding 
matters at issue, expressing opinions not really enter- 
tained, treating, and in short any and all influences which 
do not appeal to the honest judgment of the voters, and 
which are not based on the truth. 

Among the outrageous methods are the use of money 
for corrupting the voters, whether the bribe be direct or 
indirect ; as, for example, the offer of business or political 
advantage or support, or any personal benefit to the 
voter; the use of force or coercion of any kind, as by 
physical harm or by the threat of it, or by financial in- 



72 Civil Government 

jury or the threat of that ; and all other methods of sim- 
ilar nature. 

Proper Use of Party Organization. The proper use of 
party organization is to encourage and make effective all 
proper methods of influencing voters; to discourage the 
use of questionable methods, and to prevent the use of 
objectionable and outrageous methods by the members 
of all parties. Every political party should be as anxious 
to prevent and as active in correcting abuses by its own 
members as those by members of opposing organizations. 
This is one of the opportunities which those who are now 
children have to improve the political methods of their 
fathers. 

Methods of Making Nominations. There are two gen- 
eral methods of party action in making nominations. One 
is by convention, and the other by primary election. Un- 
der the former, nominations are made by conventions of 
delegates; under the latter, with a few exceptions in un- 
usual cases, they are made by direct vote of the qualified 
members of the party. Under the convention system, each 
succeeding convention eliminates the minority in it, so 
that nominations are really made by the majority of the 
nominating convention. This usually represents the will 
of the majority of the voters in the party, but such result 
is by no means certain. 

In the primary election the votes of all the members 
of the party within the territory within which the nomi- 
nee is to be elected are brought together and estimated, 
and each has its proportional effect in determining the 
nomination. 

The convention system gives better opportunity to the 
political boss and trickster; the primary election is bet- 
ter protection to the individual voter and the honest 
candidate. 



Principles of Government 73 

The Convention System. Under this system the proper 
party officers designate times and places when and 
where the various conventions are to be held, and pre- 
scribe the qualifications which entitle a person to vote. 
These are that he be a qualified voter under the law of 
the State, and usually that he supported the nominees 
of the party in the last general election. Sometimes this 
last is omitted and is substituted by a promise to support 
the nominees put forward by the party in the pending 
campaign. Occasionally both are required. 

Precinct Conventions. The first of these series of con- 
ventions are known as precinct conventions, and are held 
by the voters themselves. Each such convention is called 
by the precinct executive committee of the party to meet 
at a convenient place in its voting precinct, and all the 
voters in that precinct having the required qualifications 
are entitled to participate. The voters, or such of them 
as desire, meet at the appointed time and place and or- 
ganize themselves into a convention, and proceed as a 
collective body. They are supposed to be governed by 
general parliamentary rules, but in fact are usually a law 
unto themselves, adopting such methods as those in the 
ascendency prefer. The principal business of these con- 
ventions is to select delegates to represent the precinct 
in the next convention in the series, usually a county con- 
vention, and to elect precinct committeemen for the party. 
This last is to keep up the party organization. 

These delegates and officers are chosen by a majority 
vote, and consequently they are almost always taken 
from the faction having control of the convention. Thus, 
if A and B were opposing candidates for nomination to a 
county office, and A had one more supporter in the con- 
vention than B, the entire ticket of delegates to the county 
convention put forth in favor of A would be selected. 



74 Civil Government 

and R, by lacking one vote, would lose all benefit of the 
votes which had been cast for him and would get no sup- 
port from that precinct in the county convention. 

The delegates selected and sent to the county conven- 
tion are the representatives of the majority of those vot- 
ing in the precinct convention, and this majority may 
instruct them what to do in the county convention. If 
instructions are . given to the delegates, good faith and 
party loyalty require that they obey them; but there is 
no legal penalty for failure to do so. If the delegates 
are not instructed, or only partially instructed, they are 
free to use their own judgment, in the first instance on all 
points, in the second, on all not covered by their instruc- 
tions. 

County Conventions. All conventions in the series 
after those held in the precincts are composed of dele- 
gates. The first delegate convention is the county con- 
vention. This is composed of the delegates from the 
different precinct conventions held in the county. As 
the delegates are representatives of their respective pre- 
cincts, they collectively are entitled to the number of 
votes which the precinct they represent should have ; that 
is, the delegates do not vote in their individual right, but 
together cast the vote to which the precinct they repre- 
sent is entitled. This is to give representation to mem- 
bers of the party throughout the county in proportion to 
the party strength in the different precincts. The vote 
to which each precinct is entitled in the convention is 
ascertained by dividing the number of voters belonging 
to the party within that precinct by the number of votes 
which entitles to one representative vote as determined 
by the proper party officers. Usually the manner in 
which the vote of the delegation shall be cast in the 



Principles of Government 75 

county convention is determined by a majority vote of 
the whole delegation. Sometimes the number of votes to 
which the precinct is entitled is divided by the number 
of delegates present, and each delegate is permitted to 
cast his share of the vote. 

The county convention is called to order by the proper 
party official, and organizes by the selection of the offi- 
cers customary to deliberative bodies. 

Its business is to nominate county officers, to select 
delegates from the county to all the other conventions 
in which that county is entitled to participate, to elect 
the party officials for the county for the next term, and 
to give expression to the party opinion on local matters. 

Other Delegate Conventions. Under this system a con- 
vention must be held in every district in which a party 
nomination is to be made. These are most frequently 
districts for representatives or senators in the State 
Legislature, for judicial officers of various kinds, for 
State officers, for representatives in Congress, and for 
Presidential electors. 

The county is the unit of representation in all these 
different conventions, and sends delegations to each. 
The general order of procedure is the same in these con- 
ventions as in the county conventions as just described, 
and need not be taken up further than to say that in a 
National convention for nominating a President of the 
United States, the State is the unit, and delegates to that 
convention are selected by State conventions called for 
that purpose, and cast the vote of the State therein. 

The several conventions take such action regarding 
platforms as they desire, though platform declarations 
made by conventions less than those of State or of the 
United States are not usually regarded as of much conse- 
quence. 



76 Civil Government 

Primary Elections. The other method of selecting 
party candidates is by primary election. Under this plan 
every legal voter in the party is given an opportunity 
to vote for a candidate for each office to be filled at the 
next general election. These votes are counted, the re- 
sult declared, and a record made of it. This record is 
called a return, and is sent to the proper representative 
of the party and is kept by him till a designated time, 
when all the returns are counted together and the num- 
ber of votes received by each candidate for nomination 
is ascertained. It is customary to declare the candidate 
receiving the highest vote the party nominee. 

Conventions Under the Primary Election Method. It is 
usual on the day of the primary election to hold a precinct 
convention for the purpose of selecting delegates to a 
county convention, who are to be present and supervise 
the counting of the vote cast at the primary election in 
that county. The county conventions select delegates to 
other conventions, as under the convention system ex- 
plained above. These higher conventions meet at the times 
and places designated, count the votes for the candidates 
for nominations in their respective districts, and declare 
the results. Their functions in this respect are rather 
those of canvassing boards than of old-style nominating 
conventions. They adopt platforms, select permanent 
party officers and committees for their district, and 
thereby keep up the party organization. 

Vote Necessary to Nomination. There are three rules 
as to the vote necessary to nominate a candidate. Each 
political party is free to adopt any one of them. One 
requires that to entitle a candidate to the nomination 
he need receive only a plurality vote; that is, a vote 
larger than that received by any opposing candidate. If 
there are three or more candidates for the same office, 



Principles of Government 77 

this rule often results in the nomination of a person who 
has received less than half of the whole vote cast. 

Another rule requires a majority vote to nominate. 
Under this, no one can be a nominee until he has gotten 
over one-half of the total vote cast in the convention. 

The other rule requires a two-thirds vote to nominate, 
and no one can be the nominee until he has received at 
least that per cent, of the vote cast. 

Regulation of Party Action by Law. Until quite re- 
cently political parties had been left to select their own 
methods of procedure, so long a's these did not violate 
the general rules of law; but within the last few years a 
number of the States have passed laws especially regulat- 
ing these. Such laws require primary elections, and pro- 
vide even the details for holding them. The methods pre- 
scribed are expensive and troublesome, but afford much 
less opportunity for fraud and imposition than the old 
systems. 

The regulation of party activities and nominations by 
law marks a new era in American politics, and gives to 
the individual voter much better security in his political 
rights. 

Usually there are two great parties in every govern- 
ment. In many States the voters are about equally di- 
vided between them, but in others the majority one way 
or the other is overwhelming. In either case there is 
very little probability of any one being elected to office 
who is not a nominee of one or the other of the leading 
parties. Hence all or nearly all officers in the United 
States have been party nominees. This shows the im- 
portance of legal regulation of party politics. 

Present Political Parties. The leading parties now in 
existence in the United States are the Republican and 



78 Civil Government 

the Democratic. The Republican believes in a strong 
Federal Government with centralized powers and gives 
to the United States Constitution the broadest construc- 
tion in favor of the General Government. The Democratic 
party believes in the retention of power by the States and 
gives such reasonable construction to the Constitution as 
favors the States. These are the issues which have di- 
vided the parties which have been prominent at every 
stage of our history, and will likely remain the chief 
sources of controversy so long as the Government shall 
stand. 

RECAPITULATION. 

Co-operation among voters holding the same political 
views is essential in republics. 

Issues as to the construction and application of the 
Federal and State Constitutions are the most frequent 
and important political questions before the American 
people. 

Concerted action among those holding similar political 
views for the purpose of inducing others to vote with 
them results in the formation of political parties. 

The ways of influencing voters may be classed as 
proper, questionable, objectionable and outrageous. 

The proper use of party organization is to encourage 
proper political methods, discourage questionable ones, 
and prevent all others. This should be done by every one, 
both within and without his party. 

Everyone should affiliate with some political party. 
The choice should be made thoughtfully and patriotic- 
ally. 

Parties make themselves effective by nominating candi- 
dates for the different offices, State and Federal, and by 
adopting and promulgating political platforms. 



Principles of Government 79 

There are two methods of making party nominations: 
by convention, and by primary election. 

In the convention system the voters of a precinct meet 
in a collective body and select delegates by a majority 
vote. The minority in the precinct is without any repre- 
sentation in the county or in the higher conventions. 

All conventions after the precinct conventions are com- 
posed of delegates, each delegation being entitled to such 
number of votes as the precinct or district which it repre- 
sents is allowed. Each delegation usually votes as a unit, 
and thus shuts out the minority view in the delegation. 

In the convention system there is great opportunity for 
fraud and injustice. 

In the primary election system each voter in the party 
votes directly for those whom he wishes nominated, and 
all these votes are counted in determining who shall be 
the nominee. Thus, each vote cast in each precinct is 
carried forward into the final result, and each voter has 
equal voice in the nomination of candidates. 

A plurality vote is the largest vote cast for any one 
candidate for a particular office. 

A majority vote is a vote of more than one-half of all 
the votes cast. 

A two-thirds vote is a vote of two-thirds or more of 
all the votes cast. 

As a general rule a political party determines what 
vote shall be necessary to a nomination. In some States 
this is regulated by statute. 

In a number of States the proceedings by which polit- 
ical parties shall make nominations are regulated by law. 
These statutes all require primary elections. This reg- 
ulation is proving salutary. 



80 Civil Government 

QUESTIONS. 

I. 1. Why are political parties necessary in a Republic? 2. 
Upon what do the most important issues between them depend ? 
3. What causes concerted action, and how is it obtained? 

II. 1. Discuss the chief purpose of political parties; and the 
proper, questionable, objectionable, and outrageous methods of in- 
fluencing voters. 

III. 1. How and for what are political parties organized? 2. 
What is the duty of each member? 3. Explain the convention 
system of party action. 4. The primary election method. 5. 
Contrast the effects of each. 

IV. 1. Define a plurality vote; a majority vote; a two-thirds 
vote. 2. How far are methods of voting regulated by law? 



THOUGHT QUESTIONS FOR REVIEW. 

1. What different processes are involved in the exercise of con- 
trol by one person over another? 

2. What is political power and why is the subject-matter to 
which it applies limited? 

3. What is the usual doctrine as to the amount of political 
power necessary to constitute sovereignty? What material diffi- 
culties are there in the acceptance of this doctrine in the United 
States ? 

4. Why is political organization necessary in States where the 
sovereignty is distributed among the people? 

5. What are the advantages of a representative democratic form 
of government? 

6. What are the advantages of having a written constitution 
in such a government? 

7. What is meant by the expression, "all political power is 
inherent in the people"? What would be the result in governments 
if it were held that people here meant each individual separately? 

8. Why is it necessary to }iave political subdivisions within each 
State? 

9. How do unitary and federal states differ? Why can there 
be no citizenship in a "confederation"? Could there be a federal 
state if there were no such thing as sovereignty limited as to sub- 
ject-matter? 



Principles of Government. 81 

10. By what means can representative democratic governments 
be made to serve and advance the interests of the people? Whose 
business is it to look after these things? 

11. What advantage has government for and by the people 
over government for the people? 

12. What is really meant by the English Constitution? How 
does this differ from the American idea of constitution? 

13. Why is it that the Congress of the United States can law- 
fully do nothing unless authorized to do so by the Federal Consti- 
tution, while a State Legislature can do anything which it is 
not forbidden to do either by the Federal or State Constitution? 

14. W T hy do the people insert bills of rights in their constitu- 
tions ? 

15. What are the creative, what the functional and what the 
perpetuative parts of a constitution? 

16. What are the arguments in favor and what against the di- 
vision of governments into three departments? 

17. Why is the legislative branch of government divided into 
two houses? Why is it required that all bills for raising revenue 
shall originate in the House of Representatives? 

18. What are the powers and duties of the Judicial Depart- 
ment? Why are courts said to be agents of the sovereign? Why 
does each sovereign provide a number of different kinds of courts? 

19. What constitutes the military organization of a government? 
Is the maintenance of such organization an end and purpose of 
the government? If not, why is it maintained? 

20. What are the relations between sovereignty, government, law 
and liberty? 

21. Why is it essential that a government shall have the power 
to tax? Why cannot a government tax things over which it has 
no jurisdiction? 

22. What are the objections to collecting taxes for private pur- 
poses? Why should taxes be equal and uniform? 

23. Why is the power of eminent domain recognized as a sov- 
ereign power? Why is the State required to repay the owner 
for property taken under the power of eminent domain, when it 
is not required to repay taxes? 

24. Can a people prosper unless they are protected in health, 
safety and morals? How is the police power used to protect them? 

6 



82 Civil Government 

25. What is the difference between residence and domicile? Why 
must every one always have a domicile? 

26. What is meant by a citizen being "one of the sovereign 
people"? Prove that citizenship and the right to vote are not the 
same. 

27. What is the relation between citizenship and allegiance? 

28. How does denning and protecting legal rights result in es- 
tablishing liberty? 

29. Why are political parties necessary in a republic? In a 
republic formed on a constitution, why do political parties usually 
separate on constitutional questions? 

30. What are the advantages and disadvantages respectively in 
the convention and primary election methods of selecting party nom- 
iness? Why have a number of States passed laws regulating the 
manner of making party nominations? 



PART TWO. 
EARLY GOVERNMENT IN AMERICA. 

CHAPTER VIII. 

GOVERNMENT IN THE COLONIES AND UNDER THE 
CONFEDERATION. 

Early settlements. Each of the original thirteen States 
began life as a colony. In all but one or two the orig- 
inal settlers were English, and in the few where this was 
not true the British soon succeeded in asserting and 
maintaining their supremacy. So for all practical pur- 
poses we may deal with them all as of British origin. 

There were three forms of government under which 
these settlements were made, the colonial, the proprie- 
tary, and the provincial. In the colonial form a charter 
was granted to a colonization company. In the pro- 
prietary, the charter was granted to a proprietor, and in 
the provincial the King and Parliament seemingly re- 
tained larger powers. Gradually the people under each 
of these forms of government came into the exercise of 
substantially the same political privileges and rights. 
For some time before the Eevolution every colony had a 
legislative assembly elected by the people, which enacted 
all local laws within the colony. These assemblies exer- 
cised large control over the revenues and supplies which 
the local government received, and so kept a strong lever- 
age in forcing the enactment of laws acceptable to the 
people. 

There was not so great similarity in the Executive and 
Judicial Departments. Two of the colonies selected their 



84 Civil Government 

own Governors. In others they were appointed directly 
by the King and in others by the proprietors of the 
colony. These differences as to selection extended to 
the Governor's Council. These Councils were at once 
the advisory cabinet of the Governor and the higher 
house of the Legislature. The judges of the important 
courts were chosen by different methods in different col- 
onies, and the right of appeal to the courts of England 
was more extensive in some than in others. 

Relations with England. In all these forms of govern- 
ment England claimed and very frequently exercised 
general control, legislative, executive and judicial, over 
the colonies. The rightful limits of this control was the 
insistent cause of uninterrupted and increasing dispute 
and controversy. It was natural for England to insist 
upon her ultimate sovereignty on all questions, includ- 
ing the right to tax and to control commerce. It was 
equally natural for the colonies at first to recognize and, 
in the course of time, to resent these claims. When the 
settlements were first made they were practically de- 
pendent on the Mother Country for the means by which 
to sustain life. It was many years before any one of 
them could reasonably meet the demands of its own peo- 
ple for even the absolute necessaries. While this condi- 
tion lasted serious opposition to the claims of England 
could not arise. Dependence on the Mother Country for 
food and commerce was not all that tended to keep the 
settlers loyal. They had fierce and mighty foes to con- 
tend against. The Indians were generally unfriendly, 
and the influence of the Dutch and French did not make 
them less so, and at times there were actual hostilities 
with the French themselves. This fear of disaster for a 
long while held the colonies to England and its people 



Early Government in America 85 

and institutions, without seemingly exerting any influ- 
ence in bringing the colonies themselves into closer rela- 
tions. As each was unable to aid itself, it could not offer 
much assistance to the others. Besides, there were differ- 
ences of religion, temperament and prejudices which for- 
bade much active sympathy among them. Physical con- 
ditions also tended to keep them apart. The settle- 
ments were separated by many miles. The sea was dan- 
gerous to such craft as the colonist could command, and 
travel by land was equally as perilous. There were 
no roads, no ferries or bridges, few conveyances and 
horses, so that a journey from Jamestown to Boston in 
the early colonial days was incomparably more uncom- 
fortable and dangerous, and in many instances longer, 
than a trip from the United States to Europe is now. 
So for a long time the various colonies were not only 
distinct politically, but were far apart socially and com- 
mercially. 

Influences Tending to Separation From England. Each 
of the colonies in its isolation was contending against 
the same difficulties and overcoming the same foes. Each 
having entered upon its life with the same sturdy, liberty- 
loving people, was gradually growing into strength and 
hardiness, and also into an appreciation of its own po- 
tentiality. 

In the course of time the settlements enlarged and be- 
came more nearly self-sustaining. This enlargement also 
brought them somewhat closer together. Trade began 
to spring up among them, and the development of the 
trade of each with England, and so far as it was permit- 
ted with other countries, and the limitations and taxes 
imposed upon such trade, awakened them to the fact 
that they had common interests. They also began to 



86 Civil Government 

succor each other to some extent against the Indians. 
During the struggle between England and France the 
troops from the several colonies were brought together 
in common hardships and dangers in fighting a common 
foe. This gave better opportunity for acquaintance, and 
also taught them how much there was of identity in their 
respective conditions. England continued her manage- 
ment of her colonies from her own point of view, rather 
than from theirs, and after a while the colonies began, 
as it were, to make common cause against her. 

Separation not Contemplated in First Disagreement. 
In the early stages of the political dissensions the neces- 
sity for separation from England was not recognized, and 
many efforts at adjustment, without renouncing al- 
legiance to her, were made. In 1765, "a Convention of 
the English Colonies " was held at New York, representa- 
tives from nine colonies being present, and on October 
19th it adopted a resolution frequently called "The First 
Declaration of Eights. " 

This paper is a dignified protest by subjects to their 
lawful King. It expressly declares their present loyalty 
and their purpose to maintain it. 

First Continental Congress. Early in 1774 the Brit- 
ish Government passed the Boston Port Bill. A copy of 
this bill reached Boston early in May, and at once the 
committees of correspondence in that section met and 
sent an address to the similar committees throughout the 
provinces, asking co-operation in suspending trade with 
Great Britain. This address made prominent the ques- 
tion whether the colonics would consider the wrong 
against Boston as a wrong against all, and would make 
a common cause against England. British soldiers soon 
took possession of Boston. The Legislature of Virginia 



Early Government in America 87 

was then in session, and on May 24th the House of Bur- 
gesses set aside June 1st as a day of "fasting, humilia- 
tion, and prayer/' On May 26 the Governor dissolved 
the House for this action. The next day the members 
of the House, no longer acting in official capacity, met in 
a tavern and recommended an annual congress of all the 
colonies "to deliberate on those general measures which 
the mutual interests of America may from time to time 
require." This was the beginning of the "Continental 
Congresses." 

Each colony acted in this matter as it saw fit. Ten of 
them selected delegates. These met in Philadelphia Sep- 
tember 5, 1774. This was not a congress in the sense we 
are accustomed to use that word. It was not a meet- 
ing together of representatives of different sections of 
the same government for legislative purposes, but an 
assemblage of delegates from independent governments, 
whose sole functions were to deliberate concerning mat- 
ters of common interest and to recommend policies to 
their respective colonies. Each colony had one vote. 

September 28, 1774, this Congress voted down by a 
majority of one a "Plan for a Proposed Union between 
Great Britain and the Colonies." This was a proposi- 
tion to Great Britain of a plan of governmental co-opera- 
tion between her and the colonies. The Congress finally 
passed two highly important measures. One a Declara- 
tion of Rights and Union, and the other providing for 
an "Association" for the purpose of suspending trade 
with Great Britain. As this Congress had no authority 
to bind any one, its action, particularly the recommenda- 
tion as to "Association," was taken up by the legisla- 
tures of the colonies, and within a short time it was rati- 
fied by eleven. 



88 Civil Government 

Second Continental Congress. The Second Continental 
Congress assembled in Philadelphia May 10th, 1775. 
Like its predecessor, it began as an advisory body merely, 
but the pressure of the conditions then existing was too 
great, and without any well defined authority so to do 
it took on some of the functions of a governmental body. 
On June 14th, 1775, it determined to raise an army, and 
on the next day General Washington was selected as its 
Commander. He took command in Cambridge, Mass., 
on July 2nd, 1775. Hostilities had been in progress for 
some time in a more or less desultory way. This action 
of the second Continental Congress may be regarded as 
the authoritative recognition by the colonies of America 
that a war was pending. 

Before this, however, four of the settlements had 
changed their form of government from that of depend- 
ent colonies to temporarily independent organizations. 
It is true, these contemplated revival of fealty and al- 
legiance to Great Britain, upon a just recognition of 
colonial rights. In May, 1776, Congress advised the As- 
semblies of all the colonies to make such changes in 
their governments as should be most conducive "to the 
happiness and safety of their constituents in particular 
and America in general." All but three of the colonies 
took this recommended action before July 4, 1776. 

Declaration of Independence. This Declaration was 
made July 4, 1776. The delegates making it represented 
colonies whose political status was such as has just been 
given. In the instrument they are called both States and 
Colonies. The language in part is as follows: 

"We therefore, the Representatives of the United 
States of America, in general Congress, Assembled, ap- 
pealing to the Supreme Judge of the World for the recti- 
tude of our intentions do, in the name, and by the Au- 



Early Government in America 89 

thority of the good people of the Colonies solemnly pub- 
lish and declare, that these United Colonies are and of 
Right ought to be Free and Independent States; that 
they are absolved from all allegiance to the British Crown 
and that all political connection between them and the 
State of Great Britain is and ought to be dissolved; and 
that as Free and Independent States they have full power 
to levy War, conclude Peace, contract Alliances, estab- 
lish Commerce, and do all other Acts and Things which 
Independent states may of right do." 

Draft of Articles of Constitution. The same day that 
the committee was appointed to draft "The Declaration 
of Independence, ' ' another was chosen to prepare a basis 
for a confederation among the States thus declared to be 
free. The report of this last committee was not adopted 
by Congress till November 15th, 1776. The plan for the 
confederation required its adoption by all of the States. 
This was not done till 1781. 

The Confederation. The result of this action by the 
States was to bring into legal being the Confederation 
known as the "United States of America. " 

The second and third paragraphs of the Articles of 
Confederation are: "Each State retains its sovereignty, 
freedom and independence, and every power, jurisdiction 
and right which is not in this Confederation expressly 
delegated to the United States, in Congress assembled." 

"The said States hereby severally enter into a firm 
league of friendship with each other for their common 
defence, the security of their liberties, and their mutual 
and general welfare, binding themselves to assist each 
other, against all force offered to or attacks made upon 
them, or any of them, on account of religion, sovereignty, 
trade or any other pretence whatever.' ' 

These two paragraphs give a good idea of the nature 



90 Civil Government 

of the combination. It was a friendly league between 
independent States by which they entrusted to a Con- 
gress in which each had an equal voice such powers 
as seemed to them necessary to secure to them defence 
against common enemies. A careful study of the instru- 
ment confirms this. 

There was no executive department and no regular 
judiciary. Congress was to settle disputes between 
States by a method set out in the Articles, but there was 
no way to enforce the conclusions arrived at. It could 
also create courts with some admiralty jurisdiction. The 
only private rights which could be dealt with at all were 
disputes over land claimed under grants from the dif- 
ferent States, and these were not to be submitted to reg- 
ular courts, but to a special tribunal organized by Con- 
gress in a manner prescribed. 

Each State had one vote, and each sustained its own 
delegates. 

The article granting powers to Congress is as follows: 

Article IX. "The United States in Congress assembled, shall 
have the sole and exclusive right and power of determining on 
peace and war, except in the cases mentioned in the sixth article 
—of sending and receiving ambassadors — entering into treaties and 
alliances, provided that no treaty of commerce shall be made whereby 
the legislative power of the respective States shall be restrained 
from imposing such imposts and duties on foreigners as their own 
people are subjected to, or from prohibiting the exportation or 
importation of any species of goods or commodities whatsoever — 
of establishing rules for deciding in all cases what captures on land 
or water shall be legal, and in what manner prizes taken by land 
or naval forces in the service of the United States shall be divided 
or appropriated — of granting letters of marque and reprisal, in 
times of peace, appointing courts for the trial of piracies and 
felonies committed on the high seas and establishing courts for 
receiving and determining finally appeals in all cases of captures, 
provided that no member of Congress shall be appointed a judge 
of any of the said courts." 



Early Government in America 91 

These are the governmental powers conferred upon the 
Confederation. 

"A Committee of the States/' composed of one dele- 
gate from each State, was to represent Congress during 
the vacation of that body. 

The States were forbidden to exercise some of the func- 
tions of sovereignty relating to general matters, but there 
were some qualifications or exceptions to the denial in 
many instances. 

The scheme was too weak to result in a real govern- 
ment. Although Linder the pressure of the common dan- 
gers incident to war, the Revolution was prosecuted by 
it to successful issue, and England was forced to re- 
linquish all claim on the States composing it. 

RECAPITULATION. 

The original settlers in the colonies which were subse- 
quently changed into the thirteen original States were 
English emigrants. 

These colonies in the beginning were weak and de- 
pendent on England. They gradually increased in 
strength and self-sufficiency. 

Some of the colonies were organized under coloniza- 
tion companies, some under proprietary grants, and some 
under direct supervision of the King and Parliament. 

These different forms differed principally as to their 
Executive Departments. The Legislative Department in 
each included an Assembly elected by the people, in 
which all bills for raising local revenue were required 
to originate. 

England retained general control over all the colonies, 
and insisted on exercising her powers for her own advan- 
tage, instead of the good of the colonies. 

The colonies resented this, and as they became more 



92 Civil Government 

conscious of their power, became more and more disin- 
clined to submit, and finally joined in a number of pro- 
tests to the King and Parliament, asking redress, but not 
contemplating separation. 

In 1774 the First Continental Congress met in Phila- 
delphia. This was a meeting of delegates from distinct 
sovereignties, not representatives from different districts 
in a single nation. 

The Second Continental Congress met May 10, 1775. 
It made provision for an army with which to meet the in- 
vasion then being made by the British. 

This Congress also adopted the Declaration of Inde- 
pendence and appointed the committee which drafted 
and reported the Articles of Confederation. 

Before the action named above was taken the colonies 
had changed their governments into independent States, 
and the Declaration of July 4, 1776, was not a prophesy, 
but the assertion of an existing fact. 

The Articles of Confederation were adopted by Con- 
gress on November 15, 1776, and were then submitted 
to the States, and were ratified by the last one on March 
1st, 1781. 

The Confederation was not a federal state with the 
powers pertaining to such a government, but was a 
friendly league among independent sovereigns, in which 
each had equal voice, and whose recommendations none 
of them were bound to obey. 

Under this Confederation the States successfully car- 
ried on the Eevolutionary war and compelled England 
to recognize their independence. 

QUESTIONS. 

I. 1. What three forms of government existed in the early 
English settlements of America? 2. Were any of these independ- 



Early Government in America 93 

ent of England? 3. What did all these forms have in common as 
to legislation? 4. What difference was there between them as to 
selection of the Chief Executive. 

II. 1. What influence tended to keep the Colonies loyal to 
England? 2. What influences tended to separate them from Eng- 
land? 3. What influences tended to keep the Colonies apart? 4. 
What to bring them together? 

III. 1. What was the attitude of the colonies toward England 
when the Convention of 1765 was held? 2. When was the Boston 
Port Bill passed by Parliament? What was its effect on the Col- 
onies? 3. What action did the Virginia House of Burgesses take 
regarding it? 

IV. 1. When and where did the First Continental Congress 
meet? What was its nature? 2. What were the two most im- 
portant measures passed by it? 

V. 1. When and where did the Scond Continental Congress 
meet? 2. What did it do regarding an Army? 3. What was the 
political condition of the Colonies when this Congress met? 4. 
What advice did it give to them as to their governments? 

VI. 1. By whom was the Declaration of Independence made? 
2. Whom did it declare to be free and independent? 

VII. 1. By whom were the Articles of Confederation prepared? 
2. What was necessary to establish "The Confederation" under 
these articles? 3. What was the nature of this "Confederation"? 
4. Enumerate its principal powers. 



CHAPTER IX. 

THE PREPARATION AND ADOPTION OF THE CON- 
STITUTION OF THE UNITED STATES. 

Necessity for Changes in the General Government. 
After the close of the Revolutionary War and the with- 
drawal of all immediate outside pressure the weakness 
of the Confederation became painfully apparent. It was 
clear that the several States must either become more 
closely and effectively united or all attempt or pretence 



94 Civil Government 

of general co-operation among them would cease. 
Thoughtful men everywhere recognized that to have any- 
permanent advantage from a common government it was 
necessary for the several States really to delegate to 
that government some share of their sovereign power, 
and give to it authority somewhat proportioned to the 
responsibilities to be met by it. To this all agreed, but 
as to the extent to which such surrender need go and in 
what way it should be accomplished there were great 
differences of opinion. 

Attempts to Strengthen the Confederation. The Con- 
tinental Congress several times attempted to remedy the 
existing evils, at least partially, by proposing amend- 
ments to the Articles of Confederation, but it never suc- 
ceeded in getting the unanimous vote of all the States, 
which those Articles made necessary. 

Beginning of the Constitution. About the same time 
several of the States had appointed Commissions to meet 
with similar representatives from other States in an 
effort to adjust certain commercial difficulties. In one 
of these meetings the representatives from Virginia sug- 
gested that delegates be appointed by all the States, to 
meet together and consider their trade relations. This 
was acted on favorably by the Commissioners present, and 
a request to that effect was sent to the several States. 
This meeting was to be held in Annapolis. Commissioners 
from only five States met. These passed a resolution rec- 
ommending a convention from all the States "to devise 
such further provisions as shall appear to them necessary 
to render the Constitute of the Federal Government 
adequate to the exigencies of the Union." Copies of 
this resolution w ere sent to the Legislatures of the respec- 
tive States and to Congress. A number of the States 



Early Government in America 95 

acted favorably without waiting to see what Congress 
would do. Congress a little later recommended calling 
a convention to meet at Philadelphia on May 14, 1787. 
In a short while all the States which had not previously 
acted, except Rhode Island, appointed delegates to rep- 
resent them in this Convention. 

Convention Forming the Constitution. There was de- 
lay in the arrival of some of the delegates, but on May 
25th, 1787, the Convention organized with George Wash- 
ington as President. Before the adjournment of this 
body each State in the Confederation, except Rhode Is- 
land, was represented. The Convention sat behind closed 
doors until September 17, 1787, when the work of pre- 
paring the Constitution was completed, and the Conven- 
tion adjourned. 

T[n the resolution recommending the calling of the 
Convention Congress had stated that its sole purpose 
would be to "revise the Articles of Confederation," and 
that all the amendments proposed should become effec- 
tive when agreed to in Congress and confirmed by the 
States. The Convention evidently considered itself as 
acting under the authority of the States rather than 
that of Congress, so it disregarded this resolution, first, 
in forming an entirely new Constitution, and second, in 
failing to require any concurrence by Congress before 
the Constitution should become operative. This last is 
shown by the concluding article of the Constitution in 
these words : ' ' The ratification of the Conventions of nine 
States shall be sufficient for the establishment of this 
Constitution between the States so ratifying the same." 
The Convention did not attempt to give to the Constitu- 
tion any operative force by its own action nor to require 
any action by Congress before it became effective. It was 



96 Civil Government 

simply a proposition to the several States to enter into 
the new government, contemplated and provided for 
therein, and a declaration that it would become operative 
among the first nine States which should accept it, 
through proper conventions. If as many as nine States 
should not ratify it, it was to be without effect. If 
nine should ratify, as to them it was to constitute the 
basis of their new Union, which of necessity would super- 
sede the Confederation. The result as to the other of the 
thirteen States under these circumstances would be that 
they might either adhere to the old scheme of Confedera- 
tion or return to their original situation of entire inde- 
pendence. 

Notwithstanding the failure of the Convention to re- 
port its work to Congress for its action, that body did 
take it up and on September 28th, 1787, approved of it, 
and recommended its ratification by the States. 

Ratification of the Constitution; Organization of the 
Government Under It. Within less than a year nine of 
the States ratified the Constitution. Congress then passed 
an act providing for the organization of the new Govern- 
ment. Electors to select a President were to be chosen in 
January, 1789, and the President was to be elected in Feb- 
ruary. The first Wednesday in March was set as the time 
for "commencing the proceedings under the Constitu- 
tion." Washington was elected President. There was, 
however, delay in getting a quorum in the houses of Con- 
gress, and the inauguration ceremonies were deferred un- 
til April 30th. The Supreme Court of the United States 
has decided that the Constitution went into effect March 
4th, 1789. 

Effect on Non-Ratifying States. After Congress had 
taken action for the organization of the Government and 



Early Government in America 97 

before its actual organization, two other States ratified 
the Constitution, so that the Union began with eleven of 
the States as members. The two not then included were 
North Carolina and Ehode Island. Bach of these subse- 
quently ratified, North Carolina doing so on November 
21, 1789, and Ehode Island on May 29th, 1790. Just 
what the relations between each of these States and the 
new Government were during the interval between the 
creation of the latter and the coming in of the States re- 
spectively never came up for definite decision. Congress 
dealt with them, so far as it acted toward them at all, 
as foreign States. For example: in July, 1789, Congress 
passed a law imposing a duty on foreign ships, and 
later it passed an act suspending the former act as to 
North Carolina and Rhode Island until January 15, 1790. 
Before that date North Carolina ratified the Constitu- 
tion and so came into the Union. Rhode Island was still 
considering the matter, and another act was passed 
by Congress extending the time as to her until 
April 1st. Thus it is apparent that Congress regarded 
both North Carolina and Rhode Island as foreign when 
the first suspension of the tax was made as to their re- 
spective vessels, and that North Carolina by ratifying 
the Constitution during the first suspension had become 
a part of the Union, but that Rhode Island by failing to 
ratify retained its status as a foreign State. Still, as it 
was then taking steps to come into the Union, the courtesy 
of further suspension was accorded her. Notwithstand- 
ing the Government of the United States had been al- 
ready established on March 4th, 1789, when North Caro- 
lina and Rhode Island subsequently ratified the Consti- 
tution they eame into the Union on the same basis as 
that of the other eleven States. So that from and after 
7 



98 Civil Government 

May 29th, 1790. all the thirteen original States were con- 
stituent members of the United States of America. 

RECAPITULATION. 

After the recognition of their independence by Eng- 
land the Confederation proved too weak to hold the 
States together. 

The Congress suggested many amendments, none of 
which received the votes requisite to adoption. 

Several Commissions from a number of States met at 
different times, each surpassing its predecessor in num- 
bers and importance. 

Finally the Annapolis Convention recommended to 
Congress and to the Legislatures of the several States 
that a convention be called to meet at Philadelphia May 
14th, 1787, to take such action as might be deemed neces- 
sary. Congress endorsed the call. All the States except 
Rhode Island sent delegates. Some of these were elected 
before the action by Congress, and some afterward. 

Congress suggested that the work of the Convention be 
a revision of the Articles of Confederation, and also made 
the concurrence of Congress necessary to the validity of 
the actions of the Convention. 

"When the Convention met it prepared an entirely new 
Constitution and submitted it directly to the several 
States, providing that it should be effective among those 
ratifying when ratified by nine. 

When nine States had ratified, Congress passed resolu- 
tions providing for the organization of the Government 
under the Constitution, to be operative on the first Wed- 
nesday in March, 1789. 

At that time only eleven of the States had ratified the 
Constitution, North Carolina and Rhode Island not hav- 



Early Government in America 99 

ing done so. Subsequently these came in. In the mean- 
time they were separate and independent States, having 
no political connection with each other, or with the other 
States, or with the United States. 

QUESTIONS. 

I. 1. What method of strengthening the Confederation was at- 
tempted first? 2. What practical difficulty prevented the success 
of this plan? 

II. 1. In what way was the Convention which prepared the 
Constitution of the United States called? 2. What was its orig- 
inal purpose? 3. When and where did it meet? 4. What States 
were represented in it? 5. When did it adjourn? 

III. 1. Did the Convention revise the Articles of Confederation, 
or propose a new Constitution? 2. What was necessary to give 
practical validity to the Constitution? 3. When did it go into 
effect? 4. What States ratified the Constitution before that time? 
What two had failed to ratify? 

THOUGHT QUESTIONS FOR REVIEW. 

1. Why was it impossible for the Colonies to begin their exist- 
ence as independent States? 

2. Why was it natural that as time advanced the Colonies and 
England should separate? 

3. What was the purpose of the Convention which was sug- 
gested by the Virginia House of Burgesses, in connection with 
the Boston Port Bill? Did this recommendation contemplate the 
formation of a new government among the Colonies? 

4. How did the First Continental Congress differ from a regular 
legislative body? 

5. What is meant by the statements in the Declaration of In- 
dependence, "That these United Colonies are and of right ought 
to be free and independent States"? 

6. What is the real meaning of Articles II and III of the Ar- 
ticles of Confederation? 

7. How did the Confederation differ from a federal state? 

8. Why did the weakness of the Confederation become more ap- 
parent after the Revolutionary war than during it? 

lofc 



100 Civil Government 

9. What part did the States and the Continental Congress re- 
spectively take in calling the Convention which prepared the Con- 
stitution of the United States? 

10. In what respects did this convention in its action depart 
from suggestions made by Congress in recommending the holding of 
the Convention? 

11. What do these departures show as to the Convention's idea 
as to the source of its authority. 

12. After the Constitution had been ratified by eleven States 
and had become operative as to them, what was the relation of 
North Carolina and Rhode Island to "the United States"? 



PART THREE. 
THE UNITED STATES OF AMERICA. 

CHAPTER X. 

GENERAL NATURE OF THE UNITED STATES GOV- 
ERNMENT AND ITS RELATIONS TO THE 
STATES COMPOSING IT. 

Introductory. We have traced very briefly the causes 
leading up to and resulting in the formation of the Gov- 
ernment of the United States, and the manner in which 
the Government was created. We have seen that it was 
preceded by the thirteen original States, existing first 
as Colonies of Great Britain, and later as independent 
States; and that these independent States, by compact 
among themselves, entered into a Confederation for their 
mutual protection and advantage. Through this Con- 
federation they waged successfully the War of the Revolu- 
tion, and compelled England and the world to acknowl- 
edge their independence. We have further seen that this 
Confederation was too inherently weak to hold together 
after the pressure of war was withdrawn, and that the 
several States were confronted by the alternative of form- 
ing a stronger union, or of losing all advantage of co- 
operation among themselves. They chose the former, 
and the United States was the result. 

The United States Constitution and its Construction. 
This Government was created by the States by means of 
a written Constitution, in which its plan and purposes 
are set forth, and which the framers expected all to un- 
understand and accept with a common meaning. This 



102 Civil Government 

expectation had in it the fallacy of ignoring the human 
frailties of the framers and the interpreters of the in- 
strument. There has never been a time since it was writ- 
ten when there were not honest differences of opinion 
regarding its meaning. 

Those who believe in a strong centralized Government 
can find arguments supporting their views in some por- 
tions of the instrument. While others, equally honest and 
patriotic, who believe in the sovereignty of the States, 
and in strict limitation of the powers of the General 
Government, are equally successful in referring to other 
portions of the instrument which support them. The 
issue may be briefly stated thus: Is the United States a 
Confederation from which any of the States can with- 
draw for just cause, or is it an indissoluble Federal State ? 
So long as the argument was confined to the historical 
development leading up to the Government and its es- 
tablishment, and to' the language of the instrument and 
its contemporaneous construction, the advocates of the 
rights of the States had decided advantage. 

Result of the War on Construction of the Constitution. 
But later there came a time in our history when this 
question was left to the ' ' arbitrament of the sword, ' ' 
and the result of battle was against the States' right of 
secession and in favor of a centralized Government. It 
is too late to re-open the question, and all are alike agreed 
that since the surrender of General Lee at Appomatox 
no State has a right to secede from the Union. So, what- 
ever may have been the nature of the Government at its 
inception, it is now Federal; and no State can take back 
from it any portion of the sovereignty once ceded to it. 

Sovereignty Divided Between the People of the States 
and of the United States. This does not mean that in 
creating the Federal Government the States gave up all 



The United States of America 103 

of their sovereignty. It is only an example of the division 
of subject-matter, political activity, and authority be- 
tween two sovereigns. Before the adoption of the Con- 
stitution each of the separate thirteen States was a uni- 
tary state, having jurisdiction over all political matters. 
Some of these powers had by agreement been delegated 
to the Confederation to be exercised by it as a common 
agent for the good of all, but these powers were still 
those of the several States. So much as had been re- 
ceived from each State was subject to be recalled by it 
at any time. By the United States Constitution, as it 
has ultimately been construed, this condition is changed. 
In creating the United States of America under that in- 
strument, the several States and their people did not 
give over only temporarily the powers conferred upon 
that Government, but actually separated these powers 
from the mass of those retained by them, and transferred 
them to the Federal Government, in such manner that 
they passed irrevocably from the State to that Govern- 
ment. Each State reserved to itself all the powers not 
given over by it in the Federal Constitution to the United 
States. This is a division of sovereign power. As to 
those matters given to the Federal Government the 
people of the whole Union became sovereign. As to the 
matters not so given over the people of each of the sev- 
eral States remained sovereign. 

The Constitution the Basis of Separation. The line of 
separation between the powers of the two sovereigns is 
drawn in the Constitution. In the main it is not diffi- 
cult to trace. Thus, as to most of the matters within the 
jurisdiction of each Government, there is no controversy 
In some instances, however, there is difficulty in determ- 
ining which Government has control over a given mat- 
ter. 



104 Civil Government 

The Constitution Construed by the Supreme Court. 

The Constitution is authoritatively construed by the Su- 
preme Court of the United States. When that tribunal 
has passed upon it, all of the officers of the United States 
and of the several States, and the people of each, are 
bound to obey its decision. It may be said that this gives 
to the United States the advantage in such controversies. 
This is more theoretical than practical. An examination 
of cases adjudged by that Court will show quite as many 
and as important decisions favorable to the States as to 
the Federal Government. But even if there were more 
force in this objection, it could not reasonably be main- 
tained. If there is to be a Constitutional Union at all, 
some officer or officers must have the final authority to 
construe and apply the Constitution. Unless this power 
is concentrated in one tribunal there could be no 
uniformity of construction and consequently no uniform- 
ity of rule under the Constitution. The only tribunal 
to which this power can be entrusted is the Supreme 
Court of the United States, composed of men from dif- 
ferent States, and whose decisions are binding throughout 
the whole Union. 

Relations Between the State and Federal Governments. 
We may summarize the relations between the two Govern- 
ments thus : the thirteen original States preceded the cre- 
ation of the United States. At that time they had ceased 
to be colonies, and were complete unitary states. The 
United States was formed by the ratification by each of 
these several States of the Constituion. In entering 
into this Union each surrendered so much of its sov- 
ereignty as related to those matters given over to the 
Federal Government, but retained all power not thus 
given up. As to the powers delegated by the States to the 
United States the latter is sovereign, but as to all mat- 



The United States of America 105 

ters not so given up the States retain their original sov- 
ereignty. What part of the sovereignty of the States is 
surrendered and what part is retained can only be de- 
termined by the construing of the Constitution of the 
United States. The Supreme Court of the United States 
has the authority to construe that instrument, and to bind 
all persons by its decisions. These general doctrines must 
be kept in mind in our study of our American institutions, 
or we cannot properly understand them. 

Territorial Possessions and Their Governments. Article 
IV, Section III, Clause 2: "The Congress shall have 
power to dispose of and make all needful rules and reg- 
ulations respecting the territory or other property belong- 
ing to the United States." 

A number of the colonies had received grants from 
the English Government of territory which extended in- 
definitely inland from the Atlantic seaboard. We are not 
interested in the boundaries of the several claims, or with 
the controversies which arose out of them, further than 
to note the fact that the grants covered vast areas of 
unused territory extending toward and in some instances 
reaching the Mississippi River, and that there was ir- 
reconcilable conflict concerning them. No State had 
strength within itself to maintain its title against the 
hostility of the Indians, or the claims of European nations. 
The result was that eventually this vast area of unin- 
habited land came into the possession and under the con- 
trol of the United States, by mutual understanding be- 
tween that Government and the respective States in- 
terested in it. In addition to this in course of time the 
United States gained larger territory from France, Spain 
and Mexico. Thus this Government became possessed 
of a vast domain of public lands over which its juris- 
diction extended, and in which there were no States. 



106 Civil Government 

This territory rapidly filled with settlers from the older 
States. The policy adopted by the Federal Government 
toward this territory and its inhabitants is substantially 
the same in all of the different acquisitions, though the 
details in each case are different. 

Territorial Governments. The general policy is to or- 
ganize temporary governments within designated boun- 
daries. This is done through Congressional action in the 
following way: Congress, by statute, designates the 
boundaries of the Territory, gives it a name, and provides 
for the people within it to organize a government in ac- 
cordance with the act of Congress. This act is called an 
Enabling Act, and the government created under it has 
only such powers as it confers. The usual plan is to 
provide for the three governmental departments, consist- 
ing of a Legislature, chosen by the people of the Terri- 
tory ; of a Governor and other executive officers, the higher 
of whom are appointed by the President of the United 
States, and the lower selected by the people; and of a 
Judicial Department, the higher judges being appointed 
by the President, and the lower elected. 

Territorial Enabling Acts and State Constitutions. 
In general it may be said that the Enabling Act of 
Congress is a substitute for a Territorial constitution, 
in that it is the basis on which the Territorial govern- 
ments are founded, and at once the source of and limita- 
tion upon all official authority within them. In other 
respects these enabling acts differ very widely from State 
Constitutions. They are not permanent, and are not 
adopted by the people, but come from Congress. 

A Territory has no Senators in the United States Con- 
gress, but it has one Representative, elected by the peo- 
ple of the Territory, who is entitled to a seat in the House 
of Representatives at Washington, and to join in discus- 



The United States of America 107 

sion of matters affecting the Territory, but who has no 
vote. 

The Territorial governments established as just outlined 
exist until Congress sees fit to withdraw the authority 
from them, or until they are superseded by the formation 
of State Governments. 

New States. Article IV, Section III, Paragraph 1. 
"New States may be admitted by the Congress into this 
Union; but no new State shall be formed or erected 
within the jurisdiction of any other State ; nor any State 
be formed by the junction of two or more States or parts 
of States, without the consent of the Legislatures of the 
States concerned as well as of the Congress. ' ' 

All of this after-acquired territory was settled largely 
by people from the older States, who were citizens of the 
United States, and who were eager for the full measure 
of political power and activity that was enjoyed by the 
citizens of the several States from which they had emi- 
grated. The question of the organization of new States 
in this territory soon arose. This demand for State Gov- 
ernment was a demand for the same political status which 
was enjoyed in the older States. It was to this that the 
southern and western pioneers had been accustomed, 
and with nothing else would they be content. 

Creation of New States. The American idea of a State 
Government carries with it a written constitution, formed 
and adopted by the people to be governed under it. 
Hence, no Territory could be changed into a State with- 
out such a constitution. This has been recognized in 
every such change. A subordinate question, however, 
arose. Could the people of the Territory form and adopt 
a constitution without prior authority from Congress to 
do so? The practical answer is that they can. Such 
action may be taken, though it is customary for Congress 



108 Civil Government 

to express antecedently its willingness thereto. When the 
Constitution has been voted for by the people of the Ter- 
ritory, it must be submitted to the proper Federal officers 
for approval before it becomes operative. The Constitu- 
tion must, of course, provide for a Eepublican form of 
government, and conform in all other respects to the 
Constitution of the United States. When the Constitution 
has been formed without congressional authority, it must 
be approved by Congress and also by the President. 
When Congress has been applied to, and has given its 
consent to the formation of the State, it leaves to the 
President the approval or rejection of the particular 
Constitution which may be proposed by the people of the 
Territory. Either method seems to be within the Consti- 
tutional powers of the Federal Government, though all 
States organized within recent years have obtained ante- 
cedent Congressional consent, and it may now well be 
doubted whether Congress and the President would con- 
cur in the other method. 

Annexation of Texas. Texas came into the Union by 
an entirely different method. It had never been part 
of the United States. It had originally belonged to Spain, 
and on the successful termination of the Mexican revolu- 
tion it became a part of the Republic of Mexico. It re- 
mained a part of that Government until March 2, 1836, 
when it became a separate nation, adopting the name, 
Eepublic of Texas. It remained an independent nation 
until by treaty between it and the United States it was 
annexed and became a part of that Government. As 
part of this plan of annexation the people of Texas, in 
1845, adopted a Constitution appropriate to its changed 
condition as a State, and in the spring of 1846 organized 
its government as a State, which took its place as one of 
"the States in the Republic of the United States of Amer- 



The United States of America 109 

ica. The United States Supreme Court has decided that 
the jurisdiction of that Government for revenue purposes 
began in December. 1845, but the State Government was 
not organized until 1846. 

Status of New States. When a new State is received 
into the Union, whether by the organization of a State 
within territory formerly subject to the jurisdiction of 
the United States, or by treaty of annexation, as in the 
case of Texas, the new State takes the same position in 
the United States as that of each of the original States. 
It has the same rights and powers and is subject to the 
same duties and limitations as every other State in the 
Union. 

United States Dependencies. In addition to the exten- 
sion of its territory on the continent of North America, 
the United States has within comparatively recent years 
acquired extensive insular possessions. The conditions 
in most if not all of these are vastly different from 
those in the United States proper. The peoples inhabit- 
ing them are of different races, with sharply contrasting 
political development, traditions, and institutions. Many 
of them are said to be, and most probably are, incapable 
of helpful self-government. There are numerous and 
irreconcilable theories as to the proper policy to be pur- 
sued toward them. The one adopted by Congress and 
the President may be summed up in the expression that 
it is better for the inhabitants of these islands to have 
a good government for the people than a bad government 
by the people. They are subjected, therefore, to a strong 
centralized government receiving its powers from and 
sustained by the United States, instead of being allowed 
the privilege of establishing their own institutions, and 
of taking political charge of themselves. Theoretically 
this is as inconsistent as the banishment of American 



110 Civil Government 

Dissenters from the settlements of the Pilgrim Fathers, 
or of Andrew Johnson's reconstruction policy of bringing 
back into the Union the States which had struggled four 
years in an unsuccessful effort to get out of it. Govern- 
ment is a practical matter, and it may not be well to in- 
sist too strongly upon applying the same rule to others 
which one demands for himself. At any rate, the Philip- 
pinos are being fostered and educated in politics by meth- 
ods which are acceptable to the Federal Government, and 
which the islanders are powerless to resist.- 

Amendments to the Constitution. Written constitu- 
tions are intended to be enduring; we frequently say 
permanent, but perpetuity is not to be expected of any 
human achievement. Hence the framers of the Constitu- 
tion had either to provide for change by peaceful meth- 
ods, or else invite revolution. They chose the former, and 
incorporated Article Five into that instrument. 

This article provides two methods of amendment; one 
in which Congress takes the initiative, and one in which 
the initiative is taken by the States. 

Congress upon a vote of two-thirds of both Houses 
can propose such amendments as it sees fit. Or if the 
Legislatures of two-thirds of the States shall join in a 
call for a convention to propose amendments, it is the 
duty of Congress to make the call. Amendments pro- 
posed in either of these ways must be ratified by three- 
fourths of the States. This ratification can be either by 
the State Legislature or by a convention called for that 
purpose. 

Since the organization of the Government fifteen 
Amendments, proposed by Congress, have been ratified or 
declared ratified, and have thus become parts of the Con- 
stitution. Ten of these were made almost immediately 
after the adoption of the original Constitution, and two 



The United States of America 111 

others within a short while thereafter. The remaining 
three came with Reconstruction, and reflect a different 
public sentiment from that which prevailed when the 
Constitution was adopted. This new sentiment found 
still further expression in the construction put upon these 
last Amendments by Congress in the Civil Rights Act 
and similar legislation. In nothing since its creation has 
the Supreme Court of the United States exhibited its 
pre-eminent justice and loyalty to the Constitution as it 
is written more fully than in dealing with and setting 
aside the Congressional action which was claimed to be 
based on these Amendments. 

RECAPITULATION. 

The Colonies preceded the States. The thirteen original 
States preceded the United States. 

The United States Government is formed by a written 
Constitution. 

By the result of the Civil War the United States is 
proved to be a Federal State. 

In American institutions sovereignty is divided as to 
subject-matter. 

The people of the United States are sovereign as to 
all matters surrendered to them in the Federal Consti- 
tution. 

The people of the respective States are sovereign as 
to all matters not surrendered by them in the Federal 
Constitution. 

The Supreme Court of the United States has the author- 
ity to construe the Constitution of the United States and 
to bind all others in so doing. 

The United States at different times in its history 
has acquired vast areas of territory in which there were 
no State Governments. 



112 Civil Government 

It has established Territorial Governments in most of 
the territory which is upon the North American Con- 
tinent. 

These Governments were temporary, operating under 
the authority of Congress. 

Congress has further assisted in the establishment of 
many new States from these Territories. 

Texas came into the Union by annexation. 

A new State coming into the Union by whatever method 
assumes the same relations to the General Government 
and to the other States as those sustained by each of 
the original States. 

The United States now has large and important de- 
pendencies, which it is governing on the idea that a good 
government from without is better than a bad government 
from within. 

The Constitution may be amended in either of two 
ways: first, by proposals by Congress, and ratification 
by two-thirds of the States, either by conventions or by 
Legislative action, or, second, by proposal of a conven- 
tion called by Congress, on request of the Legislatures 
of two-thirds of the States, and ratification by three- 
fourths of the States, as stated above. 

There have been many amendments proposed. Fifteen 
have been ratified; ten within two years after the adop- 
tion of the Constitution, one within a short while there- 
after, one in 1864, and three just after the Civil War. 

QUESTIONS. 

I. 1. Explain the relation of the United States Government to 
the States composing it. 2. How was this Government formed? 
3. How was the United States proved to be a Federal State? 4. 
By what means are the powers of the separate States divided from 
those of the Federal Government? 5. What are the arguments 



The United States of America 113 

for and against giving to the Supreme Court authority to con- 
strue the Constitution? 

II. 1. In what ways has the United States acquired public 
lands, and what has been her policy toward these? 2. Explain 
the establishment of Territories, and their Governments. 3. How 
and upon what terms are new States created and admitted to 
the Union. 4. How was Texas admitted? 5. What is the policy 
of the United States toward her dependencies? 

III. 1. What provisions are made for amendments to the Con- 
stitution ? 

CHAPTER XI. 

LEGISLATIVE DEPARTMENT OF THE UNITED 
STATES GOVERNMENT. 

Law Making. Law making is one of the highest pow- 
ers and most important duties of sovereignty. It lies at 
the base of all control. Unless the will of the one in 
authority is formulated and made known, it is impossible 
for others to obey it. The rules made by sovereignty 
through governmental agencies for the control of those 
subject to it are laws. 

Reasons Leading to the Establishment of Two Legisla- 
tive Houses. Article 1, Constitution of the United States, 
provides :* 

Section 1. All legislative Powers herein granted shall be vested 
in a Congress of the United States, which shall consist of a Senate 
and House of Representatives. 

Each sovereign in organizing its government through 
which it is to act makes such provisions for the exercise 
of its legislative power as it sees fit. The people of the 
original States who formed the United States government 
were of English descent, and were accustomed to the 
English methods. In their revolution they repudiated the 



"Excerpts from United States Constitution are reproduced rcr- 
batim ad literatim. 
8 



114 Civil Government 

doctrines which are represented in monarchical forms of 
government. Their minds naturally went back to the 
past in the Mother Country and their judgment naturally 
inclined to so much of the old machinery of government 
as could profitably be adopted here. Furthermore, the 
several States had had experience in legislation from 
which valuable lessons had been learned. Dealing with 
the matter in the light of all these facts the framers of 
the Constitution selected a form of legislature consisting 
of two branches or houses, which they thought would 
act as a check upon each other, and so greatly lessen 
the likelihood of imprudent and ill considered action. 
An additional argument in favor of two houses was found 
in the opportunity which they afforded to give represen- 
tation to the people as a whole as well as to the States 
in their organized capacity. It was, therefore, determined 
that the Legislative Department of the United States 
Government should consist of two branches or houses 
known separately as the Senate and the House of Eep- 
resentatives, and together called Congress. 

Provisions Applicable Alike to Both Houses. Article 
I also provides: 

Section 4. [§ 1.] The Times, Places and Manner of holding 
Elections for Senators and Representatives, shall be prescribed in 
each State by the Legislature thereof; but the Congress may at 
any time by Law make or alter such Regulations, except as to the 
Places of chusing Senators. 

[§ 2.] The Congress shall assemble at least once in every Year, 
and such Meeting shall be on the first Monday in December, unless 
they shall by Law appoint a different Day. 

Section 5. [§ L] Each House shall be the Judge of the Elec- 
tions, Returns and Qualifications of its own Members, and a Ma- 
jority of each shall constitute a Quorum to do Business; but a 
smaller Number may adjourn from day to day, and may be au- 
thorized to compel the attendance of absent Members, in such Man- 
ner, and under such Penalties as each House may provide. 



The United States of America 115 

[§ 2.] Each House may determine the Rules of its Proceedings, 
punish its members for Disorderly Behaviour, and, with the Con- 
currence of two-thirds, expel a Member. 

[§ 3.] Each House shall keep a Journal of its Proceedings, and 
from time to time publish the same, excepting such Parts as may 
in their Judgment require Secrecy; and the Yeas and Nays of the 
Members of either House on any question shall, at the Desire of 
one-fifth of those Present, be entered on the Journal. 

[§ 4.] Neither House, during the Session of Congress, shall 
without the Consent of the other, adjourn for more than three 
days, nor to any other Place than that in which the two Houses 
shall be sitting. 

Section 6. [§ 1.] The Senators and Representatives shall re- 
ceive a Compensation for their Services, to be ascertained by Law, 
and paid out of the Treasury of the United States. They shall 
in all Cases, except Treason, Felony and Breach of the Peace, be 
privileged from Arrest daring their Attendance at the Session of 
their respective Houses, and in going to and returning from the 
same; and for any Speech or Debate in either House, they shall 
not be questioned in any other Place. 

[§ 2.] No Senator or Representative shall, during the Time for 
which he was elected, be appointed to any civil Office under the 
Authority of the United States, which shall have been created, or 
the Emoluments whereof shall have been encreased during such 
time; and no Person holding any Office under the United States, 
shall be a Member of either House during his Continuance in 
Office. 

Each House is the exclusive judge of the election and 
qualification of its own members, and by a two-thirds 
vote may expel a member. Each House makes its own 
rules of procedure, and keeps a journal of its proceed- 
ings, a majority of the members of each constituting a 
quorum. Less than a quorum cannot attend to regular 
business, but they may adjourn from day to day, and to 
secure a quorum may compel the attendance of absent 
members. Bills of all sorts may originate in either House, 
with the single exception that bills for raising revenue 



116 Civil Government 

must originate in the House of Kepresentatives. These 
may, however, be amended in the Senate. 

The Senate: How Constituted: Recognition of State- 
hood. Article I, Section 3, provides: 

Section 3. [§ 1.] The Senate of the United States shall be 
composed of two Senators from each State, chosen by the Legis- 
lature thereof, for six Years; and each Senator shall have one Vote. 

[§ 2.] Immediately after they shall be assembled in Conse- 
quence of the first Election, they shall be divided as equally as 
may be into three Classes. The Seats of the Senators of the first 
Class shall be vacated at the Expiration of the second Year, of 
the second Class at the Expiration of the fourth Year, and of the 
third Class at the Expiration of the sixth Year, so that one-third 
may be chosen every second Year; and if Vacancies happen by 
Resignation, or otherwise, during the Recess of the Legislature 
of any State, the Executive thereof may make temporary Appoint- 
ments until the next Meeting of the Legislature, which shall then 
fill such Vacancies. 

[§ 3.] No Person shall be a Senator who shall not ha,ve at- 
tained to the Age of thirty Years, and been nine Years a Citizen 
of the United States, and who shall not, when elected, be an In- 
habitant of that State for which he shall be chosen. 

[§ 4.] The Vice President of the United States shall be Presi- 
dent of the Senate, but shall have no Vote, unless they be equally 
divided. 

[§ 5.] The Senate shall chuse their other Officers, and also a 
President pro tempore, in the Absence of the Vice President, or 
when he shall exercise the Office of President of the United States. 

[§ 6.] The Senate shall have the sole Power to try all Im- 
peachments. When sitting for that Purpose, they shall be on Oath 
or Affirmation. When the President of the United States is tried, 
the Chief Justice shall preside: And no Person shall be convicted 
without the Concurrence of two-thirds of the Members present. 

[§ 7.] Judgment in Cases of Impeachment shall not extend fur- 
ther than to removal from Office, and disqualification to hold and 
enjoy any Office of honor, Trust or Profit under the United States: 
but the Party convicted shall nevertheless be liable and subject 
to Indictment, Trial, Judgment and Punishment, according to Law. 

The Senate is composed of two Senators from each 



The United States of America 117 

State, elected by the State Legislature. It ignores entirely 
every other basis of representation, such as wealth, terri- 
tory or population, and gives to each State equal repre- 
sentation. Bach Senator has one vote, and is the equal 
of every other, so that the State which he represents 
has equal rights in that body with every other. 

As no bill can become a law without the concurrence 
of the Senate, the power thus afforded to each State 
to protect itself is great. To be eligible to the Senate 
one must be at least thirty years of age, an inhabitant 
of the State from which he is elected, and must have 
been a citizen of the United States for nine years pre- 
ceding his election. 

Election of Senators. The time and manner of electing 
senators was originally left with the Legislatures of the 
several States. Congress, however, has the power to 
change such regulations as the States may make except 
as to the place of holding the elections. In 1866 Congress 
exercised this power, and provided a uniform plan for 
the election of Senators by the several State Legislatures. 
Under this law the Legislature which is the last chosen 
before the expiration of the term of any Senator is re- 
quired to elect his successor. It must take the first vote 
for this purpose on the second Tuesday after it convenes. 
This vote is taken in each House separately. The two 
Houses meet at 12 m. the next day in joint session, the 
vote taken the day before is announced and the result 
declared. If the same person receives a majority of the 
votes in each House, he is elected. If no one has secured 
a majority in each House, there is no election, and this 
fact is declared. The two Houses then proceed to take 
a vote, and if a majority of all the members of both 
Houses are present to vote, a candidate securing a major- 
ity of this joint vote is elected. If no one secures such a 



118 Civil Government 

majority during this joint session, the two Houses sepa- 
rate ; but they must meet at 12 m. of each succeeding day 
until a Senator is chosen, and take at least one vote. 
When the choice is made the Governor and Secretary of 
the State certify the fact of the Senator's election to the 
President of the United States Senate. At the appointed 
time the Senator-elect presents himself before the Senate, 
is sworn in, and begins the exercise of his official duties. 

Term of Office and Division Into Classes. It is thought 
best to have the Senate a continuous body so far as this 
can be done consistently with the ideas of continued of- 
ficial responsibility to the people and of rotation in office. 
Hence, the Constitution provides that the term of office 
of a Senator shall be six years; that at the first meeting 
of Congress the Senators should be divided into three 
classes, one class to hold office for two years, one for 
four, and one for six. As the persons elected to succeed 
the retiring Senators are each elected for six years it 
follows that the terms of one-third of the Senators ex- 
pire every two years, and that at each session of Congress 
one-third of the Senators have been recently elected, one- 
third have had office for two years, and one-third for four 
years. As it is quite customary to re-elect Senators for 
several terms it turns out that a very large percentage of 
the body each year are men of large legislative experience. 
As each new State comes into the Union it elects two sen- 
ators, and they are assigned by lot drawn in the presence 
of the Senate to one or the other classes, so that the 
division into classes and the continuity of the body is 
preserved. s 

Filling Vacancies. If a vancancy occurs in the office 
of Senator when the Legislature of the State is not in 
session, the Governor of the State appoints some one to 
fill the place until the Legislature convenes, when that 



i 



The United States of America 



119 



body proceeds to elect a Senator to fill the unexpired term. 
This election is conducted in the manner described above. 
If the Legislature is in session when the vacancy occurs, 
it elects the successor. 

Organization of the Senate. The Senate is presided 
over by the Vice-President of the United States. When 
there is no Vice-President, or when he is absent, the body 
elects a President pro tern, from among its own members, 
The Vice-President is not a member of the Senate, and 
has no vote except in case of a tie, when he casts the 
deciding vote. The President pro tern, is a member and 
has a vote on all questions. The organization of the 
Senate is completed by the selection of a Secretary, a 
Postmaster, and a Chaplain, and by the appointment of 
various committees from its members. 

The House of Representatives: How Constituted. 
Article I, Constitution of the United States, provides: 

Section 2. [§ 1.] The House of Representatives shall be com- 
posed of Members chosen every second Year by the People of the 
several States, and the Electors in each State shall have the Quali- 
fications requisite for Electors of the most numerous Branch of 
the State Legislature. 

[§ 2.1 No Person shall be a Repesentative who shall not have 
attained to the Age of twenty-five Years, and been seven Years a 
Citizen of the United States, and who shall not, when elected, 
be an Inhabitant of that State in which he shall be chosen. 

[§ 3.1 Representatives and direct Taxes shall be apportioned 
among the several States which may be included within this Union, 
according to their respective Numbers, [which shall be determined 
by adding to the whole Number of free Persons,] including those 
bound to Service for a Term of Years, and excluding Indians not 
taxed, [three-fifths of all other Personal], The actual Enumeration 
shall be made within three Years after the first Meeting of the 
Congress of the United States, and within every subsequent Term 
of ten Years, in such Manner as they shall by Law direct. The 
Number of Representatives shall not exceed one for every thirty 
Thousand, but each State shall have at Least one Representative; 



120 Civil Government 

[and until such enumeration shall be made, the State of New 
Hampshire shall be entitled to chuse three, Massachusetts eight, 
Rhode-Island and Providence Plantations one, Connecticut five, 
New- York six, New Jersey four, Pennsylvania eight, Delaware one, 
Maryland six, Virginia ten, North Carolina five, South Carolina 
five, and Georgia three.] 

[§ 4.] When vacancies happen in the Representation from any 
State, the Executive Authority thereof shall issue Writs of Elec- 
tion to fill such Vacancies. 

[§ 5.] The House of Representatives shall chuse their Speaker 
and other Officers; and shall have the sole Power of Impeachment. 

The House of Representatives is the popular branch of 
Congress, or the branch most directly representing the 
people. Its members are apportioned among the States 
on the basis of population, giving to each State the 
number to which its inhabitants entitle it. The only 
deviation from this is when a State does not have as many 
inhabitants as is required for one Representative. In this 
case it is allowed one Member. Under this condition a 
State would have more Senators than Representatives. 
The number of inhabitants in the several States is ascer- 
tained by the last preceding United States census, exclud- 
ing Indians not taxed from the count. By the Four- 
teenth Amendment to the Constitution Congress has au- 
thority to reduce the representation of the States by ex- 
cluding from the count in any State all male inhabitants 
of twenty-one years or over who are citizens of the United 
States and are not allowed to vote, except those whose 
disfranchisement is because of crime or for participation 
in the Civil War on the side of the Confederacy. 

Under this arrangement for two houses the influence 
of the smaller States in Federal legislation is secured by 
their equal representation in the Senate, while the larger 
growth of the more populous States is represented in 
their larger delegations in the House. The House cannot 



The United States of America 121 

pass laws without the concurrence of the Senate, which 
protects the States; the Senate cannot legislate without 
the House. Thus the general equilibrium is maintained, 
which protects the people. 

Eligibility to the House of Representatives. To be eligi- 
ble as a Representative in Congress one must be at least 
twenty-five years of age, an inhabitant of the State from 
which he is chosen, and must have been a citizen of the 
United States for seven years. The Representatives hold 
office for two years and are not divided into classes, so 
that it is theoretically possible for a House of Repre- 
sentatives to be composed entirely of new members. This 
never occurs in fact, for in every Congress a very large 
number of those who have been members of preceding 
houses are re-elected. 

Qualifications for Electors. It is a singular fact that 
the Constitution of the United States does not prescribe 
the qualifications of those who shall be entitled to vote 
for members of the House of Representatives or for 
Presidential electors, nor does it confer upon Congress 
the power to do so. On the other hand it expressly directs 
that persons entitled to vote for the most populous house 
of the State Legislature in each State shall have the right 
to vote for Representatives. Each State, subject to the 
limitations as to disfranchisement of persons on account 
of "race, color, or previous condition of servitude, " de- 
cides for itself who shall vote for members of its own Leg- 
islature, and under the provisions above referred to this 
determines who shall be entitled to vote in that State for 
members of Congress and Presidential electors. Congress, 
however, has the power to make and enforce other regu- 
lations as to the manner of holding elections for Represen- 
tatives. 



122 Civil Government 

Just after the war Congress exercised this power quite 
extensively, but has since repealed all such regulations 
except one fixing the time of such elections, which re- 
quires elections for Eepresentatives in Congress to be 
held throughout the United States on the Tuesday after 
the first Monday in November of each alternate year. 
As there are no Congressional regulations of the mat- 
ter in other respects, the power to provide for the man- 
ner of conducting such elections is in the several States. 

It is the custom to divide each State into as many Rep- 
resentative districts as it is entitled to have members 
in the House, and to have a Representative elected from 
each by the voters in it. Other plans may be and some- 
times are adopted. 

Length of Term and Filling of Vacancies. The Repre- 
sentative holds his office for two years. If a vacancy oc- 
curs the Governor of the State orders an election for a 
successor in the district in which it occurs. 

Organization of the House, The House chooses its own 
presiding officer from among its members. He is called 
the Speaker, and has great power in the appointment of 
committees and in controlling the order of business in the 
body when in session. Each House of Representatives 
chooses its other officers, consisting of a Clerk, a Sergeant- 
at-Arms, a Doorkeeper, a Postmaster and a Chaplain. It 
is not ready for actual legislation until the Speaker has 
announced the several committees, to some one of which 
every bill introduced must be referred. 

President's Connection With Legislation. Articles I 
and II, Constitution of the United States, provide : 

Section 7. [§ 1.] All Bills for raising Revenue shall originate 
in the House of Representatives; but the Senate may propose or 
concur with Amendments as on other Bills. 

[§ 2.] Every Bill which shall have passed the House of Repre- 



The United States of America 



123 



sentatives and the Senate, shall, before it become a Law, be pre- 
sented to the President of the United States; If he approve he 
shall sign it, but if not he shall return it, with his Objections to 
that House in which it shall have originated, who shall enter the 
Objections at large on their Journal, and proceed to reconsider 
it. If after such Reconsideration two-thirds of that House shall 
agree to pass the Bill, it shall be sent, together with the Objec- 
tions, to the other House, by which it shall likewise be reconsidered, 
and if approved by two-thirds of that House, it shall become a 
Law. Bat in all such Cases the Votes of both Houses shall be 
determined by yeas and Nays, and the Names of the Persons vot- 
ing for and against the Bill shall be entered on the Journal of 
each House respectively. If any Bill shall not be returned by the 
President within ten Days (Sundays excepted) after it shall have 
been presented to him, the same shall be a Law, in like manner 
as if he had signed it, unless the Congress by their Adjournment 
prevent its Return, in which Case it shall not be a Law. 

[§ 3.] Every Order, Resolution, or Vote to which the Con- 
currence of the Senate and House of Representatives may be 
necessary (except on a question of Adjournment) shall be pre- 
sented to the President of the United States; and before the same 
shall take Effect, shall be approved by him, or being disapproved 
by him, shall be repassed by two-thirds of the Senate and House 
of Representatives, according to the Rules and Limitations pre- 
scribed in the Case of a Bill. 

Section 3. He shall from time to time give to the Congress 
Information of the State of the Union, and recommend to their 
Consideration such Measures as he shall judge necessary and ex- 
pedient; he may, on extraordinary Occasions, convene both Houses, 
or either of them, and in Case of Disagreement between them, with 
Respect to the Time of Adjournment, he may adjourn them to 
such Time as he shall think proper; he shall receive Ambassadors 
and other public Ministers; he shall take Care that the Laws be 
faithfully executed, and shall Commission all the Officers of the 
LTnited States. 

The President's power in connection with legislation 
is one of the marked examples of an officer in one de- 
partment having authority and owing duty in another. 
These powers and duties extend to affirmative sugges- 



124 Civil Government 

tions as to proper legislation, and to restraint as to im- 
proper measures. 

By combination of these means he can effect a great 
deal in shaping and controlling the policy of the Legis- 
lative Department, and in determining what laws shall 
be enacted. 

President's Initiative. The President's initiative in 
legislation is exercised in several ways; one is by call- 
ing Congress or either House together in special session, 
when he thinks that the public interest requires it, thus 
giving opportunies for passing laws to meet emergencies 
m the life of the Nation. Another method is by sending 
messages to Congress giving them information on public 
matters, and yet another is by suggesting and pressing 
on their attention measures which, in his judgment, 
ought to be legislated upon, giving his reasons for so 
believing. 

The Veto. The President's check upon legislation to 
which he is opposed is exercised most directly through his 
veto power. Every statute or resolution requiring the 
joint action of the two houses, after it has passed both, 
must be sent to him before it can become effective. If 
he approves it, he endorses this fact on the act, and files 
it with the Secretary of State, and in due time the meas- 
ure becomes a law. If he disapproves of it, he endorses 
this fact on the bill, stating the reasons for his opposi- 
tion, and sends the bill with a statement of his objections 
to the House in which the bill originated. That House 
may abandon the matter, in which case the bill is lost, 
or it may take it up for future action. If the bill gets 
the votes of two-thirds of the members of that House, it 
is sent, together with the President's message regarding 
it, to the other House for its action; and if it is taken up 



The United States of America 125 

there and secures a two-thirds vote in its favor, it be- 
comes a law, notwithstanding the President's veto. If 
it is not acted upon by the last House, or fails to secure 
a two-thirds vote, it is lost. 

If the President shall fail to act upon a bill for ten 
days, exclusive of Sundays, while Congress is in session, 
the measure becomes a law as if approved. If Congress 
adjourns within ten days of the time when the bill reaches 
the President, the bill is defeated, unless the President 
approves it before the adjournment of Congress. 

RECAPITULATION. 

Law-making is one of the most important functions of 
government. There can be no government without it. 

Every American Legislature is composed of two houses. 
In Congress the Senators represent the States, and the 
Eepresentatives, the people. 

There are two Senators from each State. They are 
elected by the State Legislatures. 

Eepresentatives are apportioned among the States ac- 
cording to population, and are elected by the people. The 
Constitution states that all persons entitled to vote for 
the members of the larger house in the State Legislatures 
of the respective States may vote for Representatives, 
hence the different States decide who, in each of these, 
may vote for Eepresentatives in the Congress. 

Senators hold office for six years, and are divided into 
three classes, w^hose terms begin at different times, so 
that always two-thirds of the Senators have been mem- 
bers of the preceding Congress. Eepresentatives hold 
office for two years. 

The Senate is presided over by the Vice-President of 
the United States, but it selects its other officers. The 



124 Civil Government 

tions as to proper legislation, and to restraint as to im- 
proper measures. 

By combination of these means lie can effect a great 
deal in shaping and controlling the policy of the Legis- 
lative Department, and in determining what laws shall 
be enacted. 

President's Initiative. The President's initiative in 
legislation is exercised in several ways; one is by call- 
ing Congress or either House together in special session, 
when he thinks that the public interest requires it, thus 
giving opportunies for passing laws to meet emergencies 
in the life of the Nation. Another method is by sending 
messages to Congress giving them information on public 
matters, and yet another is by suggesting and pressing 
on their attention measures which, in his judgment, 
ought to be legislated upon, giving his reasons for so 
believing. 

The Veto. The President's check upon legislation to 
which he is opposed is exercised most directly through his 
veto power. Every statute or resolution requiring the 
joint action of the two houses, after it has passed both, 
must be sent to him before it can become effective. If 
he approves it, he endorses this fact on the act, and files 
it with the Secretary of State, and in due time the meas- 
ure becomes a law. If he disapproves of it, he endorses 
this fact on the bill, stating the reasons for his opposi- 
tion, and sends the bill with a statement of his objections 
to the House in which the bill originated. That House 
may abandon the matter, in which case the bill is lost, 
or it may take it up for fixture action. If the bill gets 
the votes of two-thirds of the members of that House, it 
is sent, together with the President's message regarding 
it, to the other House for its action ; and if it is taken up 



The United States of America 125 

there and secures a two-thirds vote in its favor, it be- 
comes a law, notwithstanding the President's veto. If 
it is not acted upon by the last House, or fails to secure 
a two-thirds vote, it is lost. 

If the President shall fail to act upon a bill for ten 
days, exclusive of Sundays, while Congress is in session, 
the measure becomes a law as if approved. If Congress 
adjourns within ten days of the time when the bill reaches 
the President, the bill is defeated, unless the President 
approves it before the adjournment of Congress. 

RECAPITULATION. 

Law-making is one of the most important functions of 
government. There can be no government without it. 

Every American Legislature is composed of two houses. 
In Congress the Senators represent the States, and the 
Eepresentatives, the people. 

There are two Senators from each State. They are 
elected by the State Legislatures. 

Representatives are apportioned among the States ac- 
cording to population, and are elected by the people. The 
Constitution states that all persons entitled to vote for 
the members of the larger house in the State Legislatures 
of the respective States may vote for Representatives, 
hence the different States decide who, in each of these, 
may vote for Representatives in the Congress. 

Senators hold office for six years, and are divided into 
three classes, whose terms begin at different times, so 
that always two-thirds of the Senators have been mem- 
bers of the preceding Congress. Representatives hold 
office for two years. 

The Senate is presided over by the Vice-President of 
the United States, but it selects its other officers. The 



126 Civil Government 

Vice-President is not entitled to vote except in case of a 
tie. 

The House elects its own presiding officer, called a 
Speaker, and its other officers of importance. The Speaker 
is a member of the House, and is entitled to a vote on all 
questions. 

The President has a very great influence on legislation, 
first, by information and suggestion made as to measures 
he desires enacted into law, and, second, by vetoing 
measures to which he is opposed. 

A bill which has been vetoed by the President must 
be sent by him to the House in which it originated, ac- 
companied by a statement of the reasons for his disap- 
proval. It may then be considered again by Congress; 
and, if voted for by two-thirds of each House, it becomes 
a law notwithstanding the veto. 

QUESTIONS. 

I. 1. Why is law making one of the most important functions 
of government? 2. Of what Houses does the Federal Legislative 
Department consist, and what is the importance of this division? 
3. What provisions are applicable to both Houses? 

II. 1. How is the Senate constituted, and whom does it rep- 
resent? 2. How are Senators elected, and for what terms do 
they serve? 3. How are vacancies filled? 4. Give the organiza- 
tion of the Senate. 

III. 1. How is the House of Representatives constituted, and 
whom does it represent? 2. How are these members elected, and 
for how long do they serve? 3. Give the organization of the 
House. 

IV. 1. Give the President's connection with the Legislature. 
2. Discuss in full his initiative and restrictive powers. 



The United States of America 127 

CHAPTER XII. 
THE POWERS OF CONGRESS. 

United States Government One of Enumerated Powers. 

In dealing with the powers of Congress it must be re- 
membered that the Government of the United States is 
one of enumerated powers, and can do nothing which 
it is not authorized to do by the Federal Constitution. 
This authority must be either express, that is, directly 
and specifically conferred in words, or so connected with 
and essential to the exercise of some power expressly 
conferred that it can be reasonably implied that the 
people in making the Constitution intended that the 
Government should have authority to do the thing in 
question. The first class of powers, those conferred in 
direct words, are called express powers. Those not con- 
ferred in direct words, but which are reasonably included 
in those expressly conferred, are called implied powers. 
Unauthorized Action Void. There is no longer any 
question that acts passed by Congress which are not 
within the express or implied powers conferred upon it 
by the Constitution are of no legal effect, and cannot be 
enforced as law. Frequently in court the validity of acts 
of Congress is called in question on this ground. In such 
cases the question is not that of the wisdom of the act, 
for this is a matter of policy with which courts cannot 
deal. The question is this : Does the Constitution of the 
United States either expressly or impliedly grant to Con- 
gress the power to legislate as it has. If it does, the act 
is law, and must be obeyed. If it does not, the supposed 
law is an absolute nullity. To prove an act to be null 
it is not necessary to point out some provision or clause in 
the Constitution which the act violates. This would. 



130 Civil Government 

State that part which would be due by them if every 
person in the United States paid the same sum. This 
would result in very unequal taxation among the several 
States, and such inequality was one of the evils which 
the General Government was organized to prevent. For 
example, if congress desired to levy a direct tax on land, 
it could not fix a certain per cent, to be levied on the 
value of land throughout the Union, but would have to 
take the entire amount which was to be raised by the 
tax, apportion this among the several States according 
to the population of each, and then require the payment 
in each State of such per cent, on its land values as 
would yield the sum to be collected in that State. If 
a State had many inhabitants and cheap lands the per 
cent, to be paid on the values of land in it would be 
much larger than in one where the inhabitants were few 
and the lands very valuable. For this reason, among 
others, Congress has practically abandoned direct taxa- 
tion as a means of raising revenue ; but the power exists, 
and may be exercised by any Congress which sees proper 
to do so. 

Indirect Taxation. The Federal Government derives 
its revenue principally from indirect taxes, which, as 
has been shown, are taxes levied on any person with the 
expectation that he will reimburse himself from some 
other person who is to deal with him regarding the thing 
taxed. These indirect taxes are principally duties charged 
for the privilege of bringing foreign goods into the 
United States, usually called tariff charges; and excise 
taxes, which are charged for allowing certain occupa- 
tions, or for doing certain things. These excise taxes are 
usually called licenses, and are collected principally, 
though not entirely, from persons engaged in the manu- 
facture or sale of intoxicating liquors, tobacco, and simi- 



The United States of America 131 

lar articles. It is under this power of collecting excise 
that congress can and occasionally does impose taxes 
for the making of certain kinds of documents. These 
charges are most frequently collected by requiring the 
maker of such instruments to affix to them certain stamps 
which have been bought from the government. For this 
reason the acts imposing them are called stamp acts. 

Collection of Taxes. People do not pay taxes volun- 
tarily, so the Government is compelled to employ a large 
number of officers known as Collectors of Customs, and 
Internal Revenue Collectors. Each has various assistants. 

Power to Establish Postofflces and Postroads. Effectual 
means for the speedy and safe communication of 
information throughout the whole United States are es- 
sential to the general well-being of the people. It was 
thought wise to give to the Federal Government direct 
power to provide for such means. Hence all the postoffiees 
throughout the land are in charge of the United States 
Government. Possibly that Government does nothing that 
adds more to the prosperity and comfort of the people 
than this. As a partial re-imbursernent for the great 
expense thus incurred the Government requires every one 
sending matter through the mails to pay a small sum for 
the service rendered. This is collected by the sale of 
stamps of different denominations, and by requiring a 
certain sum in stamps to be attached to each article or 
letter deposited in the mail for carriage. The grant of 
power to Congress is to establish postoffiees and post- 
roads, and while this was designed for transmitting in- 
formation in writing or print, within certain limits the 
postoffice carries goods and sends money. 

Powers Regarding Borrowing Money, Coining Money, 
Issuing Bills of Credit, and the Payment of Debts. To 
pay the debts and "provide for the common defense and 



132 Civil Government 

general welfare of the United States/' to "borrow money 
on the credit of the United States, ' ' to " coin money, and 
to regulate the value thereof and of foreign coin," are 
among the express pow ers of Congress. 

The States are forbidden "to coin money," or "to make 
anything but gold and silver coin a tender in payment 
of debts." 

While the matters covered by the foregoing quotations 
from the Constitution are quite different in some re- 
spects, they all relate to finance and business, and so af- 
fect one another that it is well to consider them in the 
same connection. 

Power to Borrow Money. Debts can properly be paid 
only with money. Ordinarily the United States raises 
money by taxation, but it is frequently quite difficult 
to estimate in advance the expenses of the Government, 
and even when this can be done it is frequently difficult 
to obtain at once the needed money by taxation. So 
to make the Government efficient it was necessary to give 
it power to incur and pay debts as well as to tax. 

Necessity for a Circulating Medium. Neither public 
nor private business can be done without some convenient 
standard by which to measure values and which all per- 
sons are willing to accept and use. Such a standard 
should be uniform, durable, convenient in form, and of 
such character that the ownership of it will pass with it 
from one person to another. To give it uniformity of 
value it should be made of some material having value 
in itself, and free, as far as possible, from fluctuation 
on account of changes in the values of other things. For 
convenience in use it should be divided into small quan- 
tities, and for the purpose of giving the public ready con- 
fidence in it, it should bear on its face evidence of its 
value. The material of which it is made should be dur- 



The United States of America 133 

able, so that it will not perish or waste in the using. It 
should be made by some competent authority a means 
by which debts of some kinds may be paid without the 
assent of the creditor. A commodity having such qual- 
ities could be safely adopted and used as a means by 
which to measure the values of other things and with 
which to do business generally. "Without such a safe 
and freely circulating medium business can not be suc- 
cessfully carried on. 

As money is used all over the world, and as it is 
quite difficult to maintain uniformity in its value under 
the most favorable conditions, it was wise to confer the 
power to coin it and regulate its value upon the Federal 
Government. 

Coining Money. Long before the Constitution was writ- 
ten gold and silver were the materials out of which 
money was made, so the Constitution does not name these, 
but simply gives the power to "coin" money. Gold and 
silver are not money unless they are coined. A gold 
ring or a silver spoon is not money. Bach has a market 
value as a commodity, and that market value is affected 
by the fact that the material in it can be coined into 
money. The coining of money is within the exclusive 
prerogatives of Government. Before gold or silver can 
be coined it must have a designated fineness or quality. 
The proper officer of Government takes metal offered 
for coinage, examines it, and if it is of the right quality 
it is separated into small quantities, weighed with great 
accuracy and stamped in the Government mint. The 
imprint thus made and stamped on the metal is the 
Government's certificate that the coin is worth what 
the stamp imports. It is this certificate which makes 
the coin pass as money. The necessity of having 
all the gold and silver money coined and certified 



134 Civil Government 

to by the same government is easily seen. So clearly 
dicl the framers of the Constitution perceive this that they 
not only gave the power to the United States, but ex- 
pressly denied it to the States. 

United States Coins and Their Denominations. The 
money unit in the United States is the dollar. All coins 
are made into dollars, multiples or fractions of dollars. 
The gold coins are dollars, two and a half, five, ten and 
twenty-dollar pieces. The silver coins are dollars, half 
dollars, quarter dollars, and dimes. The Government 
stamps nickel as five-cent pieces, and copper or pennies 
as cent pieces. These are very tiseful in such dealings 
as require small change. They are generally accepted 
and used for this purpose, though they are not money. 

Legal Tender. There is no express grant to the Fed- 
eral Government of the power to determine what shall 
be legal tender for debts. For a long time the existence 
of such power was generally denied, but later the Su- 
preme Court decided that the Government has such power, 
and the matter is now settled in that way. 

To tender is to offer. A tender to pay a debt is an 
offer to pay it. For such offer to be a " legal tender" the 
payment must be offered to the creditor in something 
that he is bound in law to accept. The right to decide 
what shall be used in making legal tenders is a very 
important one, and it is appropriate that it should be 
exercised by some authority which extends throughout 
the whole Union. 

Gold and Silver Coins as Legal Tender. The Constitu- 
tion recognizes the right in the State Governments to 
make only gold and silver coins tender for debts. The 
United States Government has always made gold coin 
legal tender for debts of all kinds, public or private, but 
smaller silver coins are legal tender only for debts of ten 
dollars or less. 



The United States of America 135 

Money Defined. Money is gold or silver coined by the 
Government and made a legal tender for debts. Nothing 
which lacks any of these characteristics is in legal con- 
templation money. It may be a convenient representa- 
tive of and substitute for money, and may be generally 
accepted as such, but it is not money in the legal sense. 

Power to Make Promises to Pay. The United States 
Government is expressly authorized to borrow money. It 
is not expressly authorized to "emit bills of credit." 
This last power is expressly denied to the States. Tak- 
ing the Constitution in all its parts it has been decided 
that the United States may exercise this power also. 
Therefore Congress can borrow money on the credit of 
the United States, and give such written evidences of its 
indebtedness as it finds most to the advantage of the Gov- 
ernment. 

United States Bonds. When money is borrowed for 
a designated time, and the loan is to bear interest, the 
Government usually gives a bond which recites these facts. 
This bond is not money, nor does it circulate as such. 
It is a promise to pay a certain amount of money at a 
certain time. So long as the credit of the Government is 
good, it is a valuable investment. 

Treasury Notes. The Government has issued other 
promises to pay in different forms. Among these are 
promises to pay a named sum of money, usually a small 
one, to any one who will present the paper containing the 
promise to the Treasurer of the United States. These 
promises are all treasury notes and most of them are so 
called, but some of them are legal tender and some are 
not. It is convenient to have some way to distinguish them, 
and as they are printed on conveniently sized tough green 
paper, those which are legal tender are popularly known 



136 Civil Government 

as "greenbacks." They are not money, but simply prom- 
ises on the part of the Government to pay money. If 
the people believe that upon presentation at any time 
the debt will be paid in gold or silver, the paper is quite 
as satisfactory and much more convenient than coin. 
If the Government could not pay, these promises would 
become practically worthless. 

United States Bank Notes. At an early day it was de- 
cided that the United States had the power to create a 
bank to be operated by it in carrying on its financial 
affairs. This idea has since been greatly extended. The 
Government now provides for and controls a large system 
of banks. "When this plan was first adopted the United 
States had issued a large number of bonds for large sums 
of money which were not to become due for a long time 
after their issue. A law was passed authorizing the char- 
tering of banks, each of which should acquire a portion 
of these Government bonds and deposit them with the 
Comptroller of the Treasury. These banks were then au- 
thorized to issue under the supervision of the Comptroller 
of the Treasury a limited number of its notes payable 
to bearer on demand. These notes state on their face 
that they are secured by a deposit of United States bonds, 
and will be received by the Government for all debts due 
to it, except import duties, and interest on the public 
debt. This law is the basis of the National banking sys- 
tem. A great many banks have been chartered under it, 
and a great many bank-notes have been issued by them. 
These notes circulate freely and are generally regarded 
as money. 

Gold or Silver Certificates. For a long time after the 
organization of the Government it actually coined money 
in large quantities; but in later years a more convenient 
way of providing a circulating medium based on the un- 



The United States of America 137 

coined bullion has been adopted. The owner of the gold 
or silver metal called bullion carries it to the mint, where 
the Government officers test its quality and amount. They 
estimate the amount of money that could be coined from 
it, and give in its place to its owner a number of certifi- 
cates showing that there has been deposited with the Gov- 
ernment a certain amount of gold or silver, and that 
the Government will pay to any one presenting any one 
of these certificates the amount called for by it. All these 
certificates taken together equal the coin value of the 
bullion deposited. 

From the foregoing it is seen that a very small portion 
of our circulating medium which we call money is actually 
entitled to that name. These promises to pay money are 
much more convenient than coin, and the people are much 
accustomed to using them. "We naturally, therefore, come 
to think and speak of them as money; still, they are es- 
sentially different from it, and it is dangerous to let 
the thought that they are money become fixed in the 
mind. In a country like ours, where every one has po- 
litical influence and responsibility, no one can afford to 
have wrong conceptions of these important matters. 

RECAPITULATION. 

Congress is expressly empowered to lay and collect 
taxes, duties, imposts, and excises. All duties, imposts, 
and excises must be uniform throughout the United States, 
and all ad valorem or other direct taxes must be appor- 
tioned among the States according to their population. 

On account of the requirement as to the manner of 
apportionment among the States it is impracticable for 
the United States to levy and collect direct taxes. Hence 
revenue is raised almost exclusively by indirect taxes. 

Congress has express power to establish postoffices and 



138 Civil Government 

postroads; under this postoffices are maintained for car- 
rying written and printed matter, small parcels of mer- 
chandise, and for transmitting money. The Government 
makes a small charge for such service, which is paid in 
postage stamps, previously issued by the Government and 
paid for by the user. 

Congress has express power to coin money, borrow 
money, and pay the public debt. 

The States are forbidden to coin money, to emit bills 
of credit, or to make anything but gold or silver coin 
a legal tender for debt. 

From the express powers given to Congress and from 
those denied to the States it is decided that Congress 
can emit bills of credit and make other things besides 
gold and silver a legal tender for debt. 

Money is gold or silver which has been coined by the 
government and made a legal tender for debt. 

The money unit in the United States is the dollar, and 
all coins are either dollars or multiples or fractions of 
dollars. 

Nickels and pennies are not money, but are considered 
and generally accepted as a substitute for money. 

A legal tender is a circulating medium which the United 
States compels all creditors or creditors of certain kinds 
to receive in payment of debts due them. 

Gold and silver dollars are legal tender in the United 
States for any amount. Silver coins of less than a dol- 
lar are legal tender for debts of ten dollars or less. 

Congress has power to make its promises to pay money 
receivable for public debts and legal tender for private 
debts. Congress has exercised this power to some extent 
as to several kinds of such promises. 

Bonds are written promises to pay at a certain time 
specified sums of money to a person named or to any 



The United States of America 139 

one to whom he may sell the bond. Usually they bear 
interest at a rate agreed npon between the parties. 

The United States has power to issue bonds, and has 
done so in large amounts. Many such bonds are still 
outstanding. They are most of them ow T ned by National 
banks, and deposited with the Government to secure the 
notes issued by these banks. 

The United States has the power to give its written 
promise to pay to persons to whom it is indebted, or to 
their order. These promises may be to pay at a named 
time, or on demand. "When issued such promises may be 
made receivable for public debts of all kinds, or of named 
kinds. They may also be made legal tender for private 
debts. 

Congress has issued a great many such promises, usu- 
ally called treasury notes. Some of these are known as 
* 'greenbacks." 

Congress has created a system of National banks and 
authorized them to deposit United States bonds with 
the Government. Each bank may issue notes payable to 
bearer in sums aggregating the face value of the bonds 
deposited by it. These notes also circulate as money. 

Instead of coining gold and silver bullion, the Govern- 
ment receives it on deposit and issues certificates to the 
owners, which are redeemable when presented by pay- 
ment by the Government of the designated amount of 
gold or silver. These are called gold and silver cer- 
tificates, and circulate as money. 

Treasury notes, greenbacks, bank notes, gold and sil- 
ver certificates are none of them money. They are prom- 
ises to pay money, and depend for their value and use 
entirely upon the ability of the promisors to pay the 
money called for. 



140 Civil Government 

QUESTIONS. 

I. 1. Explain the difference between express and implied pow- 
ers. 2. When is an act of Congress valid? 3. Under what three 
main classes do the express powers given in the text fall? 

II. 1. The taxing power of Congress includes what classes 
of taxation? 2. What are the objections to direct taxation, and 
how does the Government avoid these? 3. Enumerate the indirect 
taxes, and explain each. 4. By whom are taxes collected? 

III. 1. Why is the establishment by the Government of post- 
offices and postroads so important? 2. How does the Govern- 
ment reimburse itself for their cost? 

IV. 1. Enumerate the powers of Congress regarding finance. 
2. Why is the power to borrow money necessary? 3. What is 
the necessity for and what should be the qualities of a circulat- 
ing medium? 4. Give the process of coining money. 5. By 
whom may this be done? 6. Explain "legal tender/' and what 
may be offered as such? 7. Define money. 8. What are United 
States bonds? 9. Treasury notes? 10. Gold and silver certifi- 
cates? Distinguish between and give the origin of each. 11. Why 
are none of these money? 



CHAPTBE XIII. 

LEGISLATIVE DEPARTMENT— THE POWERS OP 
CONGRESS (Continued). 

Powers over Commerce. Commerce consists of traffic 
and intercourse, buying, selling, and transporting goods 
and commodities of all kinds, and transporting persons. 
It is impossible for any civilized people to live without 
it. As a people advances, its commerce increases; and 
as the means of communication between different sec- 
tions increase, commerce is extended over larger terri- 
tory. The commerce of the people of the United States 
with foreign nations, and among the different States, was 
great when the Constitution was adopted, and has grown 



The United States of America 141 

immensely since. Hence this power, which was always 
important, has now become one of the most far-reaching 
and indespensable of all those possessed by the Federal 
Government; but important and extensive as it is, it is 
not unlimited. Congress does not have power to regu- 
late all commerce, but only that with foreign nations, 
among the States, and with the Indian tribes. All mat- 
ters of domestic commerce are exclusively within the 
jurisdiction and control of the States. 

Commerce With Foreign Nations. Commerce with 
foreign nations includes all commercial dealing between 
persons in the United States with persons in any foreign 
country, and the bringing and sending of merchandise 
of all sorts between the United States and such coun- 
tries. 

Commerce Among the States. Commerce among the 
States includes all traffic in commodities when they are 
to be removed from one State to another, or when it 
otherwise directly concerns more than one State, and the 
transportation of both property and persons from one 
State to another. The amount of this commerce is im- 
mense, and uniformity in its regulation is of supreme im- 
portance. The wisdom of giving it over to the Federal 
Government is continually shown. 

Legislation Under This Power. Under this power Con- 
gress has passed a great many laws; too many to be 
enumerated here. Some of the more important of them 
are the various acts regulating navigation in its several 
forms; acts for the improvement and maintenance of 
harbors, navigable rivers and streams; the act creating 
the Interstate Commerce Commission, with various 
amendments thereto; and the United States anti-trust 
laws. 

Necessity for Regulation. Carrying goods and per- 



142 Civil Government 

sons from one State to another by the railroads is ab- 
solutely essential to the business and comfort of the 
American people. Different necessities of life are pro- 
duced more cheaply in some States than in others. In- 
deed, there is no single State in which all of these neces- 
saries can be easily and cheaply provided. The most 
practical and economical plan, therefore, is to produce 
each of these different commodities at the place best 
adapted to it, and to transport the finished product to 
those sections in which it is to be used. The people of 
the North need cotton. It is raised in the South and 
carried to them. The people of the South need manufac- 
tured articles. Many of these are made in the North 
and transported. Transporting these different products 
from one State to another is done very largely over 
railroads. The railroad companies are entitled to charge 
fair prices for this hauling, but they ought not to have 
more than a fair price. Again, if the roads should all 
refuse or even neglect to carry any useful product to 
a particular community, the result would be very hurt- 
ful to the people thus deprived. It might be some- 
thing without which they could not live in comfort, and 
they might have no other way of getting it. In such cases 
the inconvenience and suffering would be great, some- 
times even ending in death. Suppose, for example, that 
the railroads would not carry fuel of any sort to a cer- 
tain town. The people could neither cook nor keep warm. 
This is an extreme case, and would occur very rarely, 
even without regulation of the roads. But such in- 
stances are not unknown. There are cases of unjust 
discrimination by the roads between their patrons, or 
between different communities. For instance, two men 
go into the wholesale grain business in the same town. 
The railroads coming into the town favor one of them 



The United States of America 143 

and charge him much less for carrying his grain than 
they do the other. The one favored can undersell his 
competitor, and so drive him out of the business, and 
thus having gotten rid of competition the former can 
charge the public higher prices than he could otherwise 
have done. Or, the controllers of a road interested in a 
certain town may give to all persons doing business 
there less rates than they will make to those in the 
neighboring towns, and thus build up the place in which 
they have interest. These are but illustrations of what 
those in control of large railroads might do if uncon- 
trolled. These and many more similar wrongs were act- 
ually committed in connection with interstate shipments. 
To meet these conditions Congress passed a law for the 
regulation of railroads in their interstate business, and 
providing for the organization of an Interstate Com- 
merce Commission to superintend the enforcement of this 
and other United States laws applicable to railroad com- 
panies in interstate traffic. 

General Provisions as to Regulation, These regula- 
tions by Congress are quite comprehensive, forbidding 
almost all kinds of unfair action by the roads. The most 
important of these are: (1) All rates must be reason- 
able. (2) The roads must not discriminate unjustly 
between shippers or places. (3) They must not discrim- 
inate between different connecting lines. (4) They must 
not charge more for a " short haul" than for a "long 
haul" when the conditions are substantially the same. 
(5) They must not enter into any "pool" or similar 
agreement. 

The Interstate Commerce Commission. This commis- 
sion consists of five members, appointed by the President 
and approved by the Senate. They have power to super- 
vise the roads engaged in interstate commerce, to in- 



144 Civil Government 

vestigate their conduct and methods, and to make or- 
ders as to rates when disagreements arise between the 
roads and any person or place claiming protection under 
any act of Congress. They have no authority to sit as 
judges, condemn the roads, or assess penalties against 
them. This must be done by the courts. This law has 
been amended several times, and in each instance the 
amendment has been to strengthen the commission by 
giving it larger powers. 

Anti-Trust Legislation. It is under the power to regu- 
late international and interstate commerce that Congress 
has enacted the statute known as the anti-trust law. This 
is a law forbidding persons, natural or corporate, who are 
engaged in international or interstate commerce, from 
combining in such way as to destroy healthy competi- 
tion. Combinations for such purposes are called trusts. 
They are exceedingly harmful in many of their results, 
and much effort has been made to prevent or control 
them. They still remain in business, though recent legis- 
lation and court proceedings seem to promise greater 
success in their suppression. 

Relations of the Federal and State Governments as to 
Commerce. Interstate and international commerce are 
exclusively under the control of the United States. Do- 
mestic or intrastate commerce is exclusively within the 
control of the States. There is no doubt but that both 
of these propositions are correct. Congress has no power 
to rnake a law which directly controls domestic matters. 
A State has no power to make a law which directly con- 
trols international or interstate commerce. However, 
it is equally true that neither of these Governments can 
make a law directly affecting one of these matters which, 
when put into actual operation, does not indirectly affect 
the other. 



The United States of America 145 

Eight to Regulate Carriers Who are Engaged in Both 
Domestic and Interstate Commerce. The same railroads 
are constantly engaged in the transportation of domestic 
and interstate shipments and passengers. These roads 
are legally entitled to receive from their business a rea- 
sonable return, covering fixed charges, running expenses, 
and fair profit. This income must come from all of the 
charges made for carriage of all kinds. If the State re- 
duces charges on domestic commerce, this necessarily 
leaves more to be supplied by interstate charges, and 
vice versa. It seems to be settled that in all such cases 
the Government having the power of direct control is 
entitled to exercise it, notwithstanding that it may in 
so doing have an indirect effect upon the matter within 
the control of the other. 

State's Police Power. Questions of the kind just con- 
sidered are not the only ones arising in connection with 
these powers of the two Governments. Under the right 
to control international commerce and intercourse with 
other nations, Congress has jurisdiction over ports of en- 
try, and may make such laws regarding them as in its 
judgment are proper to regulate such commerce within 
such ports. But the State in which the port is situated 
is also under obligation to protect the morals, health and 
safety of its inhabitants, and has the power to do so. 
Under this authority, called the police power, the State 
may rightfully establish and maintain proper quarantine 
regulations and enforce them against foreign vessels 
bringing goods and passengers into the port. These and 
many other points which frequently arise call for mutual 
good will and a spirit of respect and helpfulness between 
the Governments and their respective officers. Few con- 
troversies have actually arisen, and these have been so 
10 



146 . Civil Government 

satisfactorily adjusted that the difficulties are more in 
theory than in practice. 

Powers of Congress over Bankrupts and Their Cred- 
itors. Congress also has the express power to establish 
uniform laws on the subject of bankruptcies throughout 
the United States. 

A bankrupt is one who has failed in business, so that 
he is unable to pay his debts as they come du$. Under 
some conditions it is well to let such an one distribute 
what he has among his creditors, and obtain a re- 
lease from the portion of his debts which he cannot 
pay. This is better for the debtor, for he can begin bus- 
iness again without danger of interference from his cred- 
itors as soon as he has accumulated property. It is bet- 
ter for the creditors, for they frequently get more money 
with less expense and delay than if each should sue in 
the ordinary way. A man's business may be scattered 
through a number of States; thus it is clear that it is 
better to have proceedings in which all his creditors are 
parties, and by which they are all to be bound, regulated 
uniformly by Congress, than to have the States each mak- 
ing separate laws concerning them. 

Under this power Congress can compel creditors to 
release the unpaid balance due from their debtors who 
have been declared bankrupt and whose estates have been 
pro rated and paid out in accordance with the law. Con- 
gress has several times exercised this power in the passage 
of bankrupt laws., 

These laws permit the debtor who has failed to begin 
the proceedings in order to be discharged from his debts. 

They also permit creditors of a debtor who has com- 
mitted an act of bankruptcy — that is, who has failed to 
pay his debts, or who has given certain kinds of security 
under specified circumstances — to begin the proceedings. 



The United States of America 147 

Proceedings in Bankruptcy and Their Effect. It does 
not matter by whom the proceedings are begun, if the 
debtor is bankrupt and that fact is shown, the court 
takes charge of his property, sells it, and pays out the 
proceeds to the creditors, distributing it according to 
their respective rights. After the payments are made the 
debtor is discharged from any legal obligation to pay 
the debts not tainted with fraud which were proved up 
against him in the bankruptcy case; that is, he cannot 
be sued for any debts which he owed at the time and 
for which he obtained a discharge. If he makes debts 
later, he can be sued for those. 

State's Power Over Insolvents. The grant of the 
power to make bankruptcy laws to Congress is equivalent 
to a denial of it to the States, so that no State can pass 
a law for taking charge of a debtor's estate, distributing 
it among his creditors, and compelling the creditors to re- 
lease the debtor on payment of less than the whole debt. 

There is also a clause in the Federal Constitution which 
forbids the States to pass laws impairing the obligation 
of contracts. This has the same effect, for to compel 
a creditor to take less than the whole amount due him on 
a contract, and give up his claim for the balance, neces- 
sarily impairs the obligation resting on the debtor to pay 
it all. 

State Insolvent Laws. The States may, however, pass 
insolvent laws. These are laws very much like bank- 
ruptcy laws in their purposes and in most of their pro- 
visions, but there is this one great difference. They do 
not directly attempt to make the creditors discharge the 
debtor unless he pays the whole debt, though practically 
they often accomplish this; that is, the law will provide 
that the debtor may assign all his property to some one 
who will take charge of it for the benefit of those of his 



148 Civil Government 

creditors who will voluntarily come in and accept such 
payment on their debts as the property will cover, and 
who will release the balance. Those who desire come 
in and get their proportion of the money, releasing the 
whole of their claims. Those who do not agree to this 
cannot be made to do so, but they can take no part in 
or receive anything from the settlement. They hold their 
entire claims and collect them by ordinary suit, if they 
can find anything belonging to the debtor not covered by 
his assignment, or which he has acquired after the as- 
signment has been made. 

This right by the creditor to choose whether he will 
come into the settlement for his share of it, or remain out 
of it and try to collect all that is due him, is the point in 
which insolvent laws, which can be passed by a State, dif- 
fer from bankruptcy laws, which can be passed only by 
Congress. 

Patents and Copyrights. Congress has power to pro- 
mote the progress of science and the useful arts by se- 
curing for limited terms to inventors and authors the 
exclusive right to their respective productions. Under 
this power Congress has enacted patent and copyright 
laws, which are most beneficial. They stimulate inven- 
tion, authorship, and art, by giving to the persons whose 
ideas are protected a fair opportunity to receive pay 
for them. 

Patent Laws. The laws giving protection to inventors 
and discoverers are called patent laws. To entitle an 
inventor to a patent his invention must be original and 
useful. If an inventor proves to the proper United States 
officers both these facts, the Government issues him a cer- 
tificate to that effect. The law forbids all other persons 
to make, sell, or use such invention unless they have 
permission from the patentee. This gives the patentee 



The United States of America 149 

practical control over and monopoly of the invention and 
its use during the time provided for by the law. 

Copyright Laws. An author of a book, pamphlet, or 
piece of music, or the painter of a picture, can obtain a 
copyright for his production by filing a copy or copies of 
his book or music or a description of his work of art 
with the Librarian of Congress in the time and manner 
set out in the acts of Congress; and upon payment of a 
small fee he is given a certificate of that fact, and that he 
claims to be the author or originator of the book, or work 
of art. In the patent office the officers look into the ap- 
plicant's right to a patent before it is issued. There is 
no provision of law requiring an inspection of the book, 
etc., on which a copyright is taken out. Thus the copy- 
right protects the real author only. The certificate from 
the Government shows only that the person taking out 
the certificate does not intend to give any one else the 
right to publish his book. V> 7 hether he is the real author 
and entitled to the exclusive right is not passed upon 
by the officer giving the certificate. 

Naturalization. Congress has express powers "to es- 
tablish a uniform rule of naturalization * * * through- 
out the United States." 

Naturalization is the process of changing an alien into 
a citizen. 

Citizens of the United States. The Fourteenth Amend- 
ment to the Constitution declares: "All persons born or 
naturalized in the United States, and subject to the juris- 
diction thereof, are citizens of the United States and of 
the States in which they reside." This makes citizen- 
ship in the United States dependent upon one of two 
things : birth within the United States, or naturalization. 

Citizenship by Birth. Birth within the United States 
means birth within the jurisdiction of the United States 



150 Civil Government 

rather than within its boundaries, though birth within 
its boundaries is very strong proof of birth within its 
jurisdiction. For example, the child of a citizen of the 
United States, whose parent is representing his country 
as a foreign minister or consul, is considered as born 
within the jurisdiction of the United States, even though 
he be actually born on foreign territory. On the other 
hand, a child born to a representative of a foreign coun- 
try at Washington would be regarded as born without 
the jurisdiction of the United States, although actually 
born within its borders. The child of our minister, born 
abroad, is a citizen; the child of a foreign minister, born 
here, is an alien. It used to be held that no one could 
change his citizenship ; but this doctrine is abandoned, 
and it is now recognized that he can do this. 

Naturalization Exclusively in Jurisdiction of Federal 
Government. The power of Congress to naturalize, so as 
to make citizens of the United States, is exclusive, and 
cannot be exercised by the States. The States may, how- 
ever, confer such rights upon persons resident within 
their borders as they see fit, even though they be such 
as are usually enjoyed only by citizens. The State can 
thus confer the right to vote ; and, as the right to vote for 
the Federal Representatives and Presidential Electors de- 
pends on the right to vote for members of the House of 
Representatives in the particular State, it follows that 
the State can practically withhold the right of suffrage 
in Federal elections from citizens of the United States, 
and confer it upon persons not such citizens. 

Who May be Naturalized. Any alien whose govern- 
ment is at peace with the United States and who is 
a white person, or of African descent, may be naturalized. 
But Chinese, Sandwich Islanders, and Burmese may not. 
However, the children of these classes who are born in 



The United States of America 151 

the United States, and whose parents are not in diplo- 
matic service, are citizens. 

Process of Naturalization. There are two distinct 
steps in naturalization: (1) The declaration of intention. 
(2) The actual adoption into citizenship. The first is a 
sworn statement by the alien, before some court of rec- 
ord or its clerk, that he desires to become a citizen of the 
United States, and to renounce all foreign allegiance. This 
must precede the final action by at least two years. The 
final action is taken by appearing before a court of record, 
in open court, and declaring on oath that the alien re- 
nounces all foreign allegiance, and will support the Con- 
stitution of the United States. He must also prove that 
he has made the former declaration in due form, that he 
has resided in the United States for five years and in the 
State or Territory in which the court is held for three 
years ; that he is well disposed toward the United States, 
and has conducted himself properly during his residence 
therein. 

Implied Powers of Congress. It is quite impossible to 
enumerate and discuss all the implied powers of Congress. 
In their nature they arise from different and often from 
changing conditions, and each state of fact with which 
Congress has to deal must be considered fairly, and the 
power of the Government determined in the light of the 
whole Constitution. Powers necessary to the efficiency 
of the Government, and which are fairly and reasonably 
to be gathered from the entire instrument, should not 
be denied. Powers not given by fair and reasonable in- 
terpretation are not to be supplied because they seem 
to be desirable. 

Examples of Implied Powers: National Banks. There 
is no express power given Congress either to charter cor- 
porations or to establish banks. At an early day in our 



152 Civil Government 

history Congress did both. It chartered a corporation 
to do business as a bank. The purpose was to assist 
the officers of the Government in carrying on its financial 
operations. It was impossible to do what the Government 
was created to do without having money, and it was 
equally important to have safe and quick means by which 
to send money collected in one place to other places 
where it was needed. These were operations commonly 
performed by banks, and banking by the Government 
could be done more safely and satisfactorily by corpora- 
tions than by private persons. Hence, the Supreme Court 
decided that the power to charter a bank and use it in 
carrying on the business of the Government was implied 
in the powers expressly granted to Congress, and that 
the act creating the banking company was valid. 

Railroad Companies. Again, there is no express power 
conferred on Congress to charter a railroad company to 
build a railroad. But, as we have seen, it is empowered 
to establish postroads, and also it is charged with the 
duty of maintaining an army and of protecting the 
whole country from outside foes or serious insurrections. 
Armies and army supplies and equipment must be moved 
from place to place, and in order to be effective this 
change of place must be rapid and sure. So Congress, 
to enable it to accomplish these ends, chartered a rail- 
road company to build a road across the continent, and 
gave to the company very great assistance in so doing. 
This is another striking illustration of implied power. 

When the United States can Charter Corporations. 
"We must not conclude from these two illustrations, in 
each of which Congress created a corporation, that Con- 
gress has power generally to grant charters to such com- 
panies. This is not true. If Congress undertook to char- 
ter a private corporation to carry on a mercantile bus- 



The United States of America 153 

iness, the act would be void, because the Federal Gov- 
ernment has no general power to charter corporations, 
nor to carry on mercantile business. It can only grant 
charters when the purpose to be accomplished through 
the corporation is one which the government is expressly 
empowered to do, and when the corporation is a reason- 
able and proper means through which to accomplish that 
purpose. 

RECAPITULATION. 

Commerce means traffic and intercourse, buying, sell- 
ing, dealing with and transporting goods or commodities, 
and also transporting persons. 

Commerce between different nations, or between or 
among citizens or subjects of different nations, or trans- 
portation between different countries, is international 
commerce. 

Commerce between or among the citizens of the several 
States, and which concerns more States than one, or 
transportation between different States, is interstate com- 
merce. 

Commerce entirely within a State is domestic com- 
merce. 

The United States Government has jurisdiction and con- 
trol over international and interstate commerce. The 
respective States have jurisdiction and control over do- 
mestic commerce. 

Congress has passed many navigation laws regulating 
international commerce and the coast trade in the United 
States. 

Congress has passed laws forbidding railroad com- 
panies engaged in interstate commerce to make unreason- 
able rates, or to unjustly discriminate between shippers 
or places or different connecting lines, or to charge more 



154 Civil Government 

for a short haul than for a long one when the conditions 
are the same, or to enter into any "pool." 

Congress has created the Interstate Commerce Com- 
mission to look after the enforcement of the laws regu- 
lating international and interstate commerce, and to in- 
vestigate alleged violations of them, and to pass on the 
reasonableness of railroad charges when complaint is 
made. The Commission cannot try the roads and punish 
them for past violations of the law. 

A trust is a combination between two or more persons, 
engaged or interested in the same business, by unlawful 
means, to prevent competition between them, and thus get 
advantage to themselves or to do damage to others. 

Trusts affecting international or interstate commerce 
are within the jurisdiction of Congress, and it has passed 
strict laws prohibiting and punishing them. 

Congress has the right to regulate interstate commerce 
and the railroads in carrying it on, although such regu- 
lations may indirectly affect matters exclusively within 
the jurisdiction of the States. 

The States have right to regulate their domestic affairs, 
including State commerce, even though such regulations 
may indirectly affect interstate commerce. 

Congress cannot, under guise of regulating interna- 
tional or interstate commerce, prevent the States from 
reasonable and proper use of their police power. 

The States cannot, under the guise of exercise of their 
police power, unreasonably and improperly interfere with 
the regulation of international and interstate commerce 
by Congress. 

Congress has the exclusive power to pass bankrupt 
laws. These are laws providing for the release of an 
insolvent debtor upon his giving up all of his property 
to his creditors, although it may not be sufficient to pay 



The United States of America 155 

his debts in full, although his creditors may not agree 
to the release. 

States cannot pass bankrupt laws; but they can pass 
laws known as insolvent laws by which an insolvent 
debtor can be released from his debts to such of his 
creditors as agree to accept their legally proportionate 
share of his property as full payment. 

A patent is a certificate by the Government declar- 
ing that the person named in it is entitled to the ex- 
elusive right to manufacture and sell a new and useful 
invention for a designated time. 

A copyright is the exclusive right to publish and sell 
books or other literature, or music or pictures, or other 
works of art. 

The United States has the exclusive power to issue 
patents and certificates of copyright. 

Naturalization is the process by which an alien is 
changed into a citizen. Its regulation is exclusively 
with Congress. The rules must be uniform throughout 
the United States. 

There are two steps in naturalization : the first is known 
as "declaration of intention," and the second, as "tak- 
ing the oath of allegiance.' ' 

Chartering National banks and building railroads to 
carry troops and military supplies are instances of the 
exercise of implied power. 

QUESTIONS. 

I. 1. Define commerce, international commerce, interstate com- 
merce, and domestic commerce. 2. By what power is each con- 
trolled? 3. State the purpose, duties, and organization of the 
Interstate Commerce Commission. 

II. 1. Define a trust. 2. Why are they forbidden by Congress? 
3. What is the anti-trust law? 4. What is the relation of the 



156 Civil Government 

Federal and State Governments as to interstate and State com- 
merce? 5. What control has each over ports of entry? 

III. 1. Define a bankrupt. 2. Who has the exclusive right 
to pass bankrupt laws? 3. What is the difference between a 
voluntary and an involuntary bankruptcy proceeding? 4. What 
is the effect of a discharge? 5. How do insolvent laws differ from 
bankruptcy laws, and by whom may they be passed? 

IV. 1. Define a patent. 2. A copyright. 3. State the pro- 
cess of obtaining each. 

V. 1. What is naturalization? 2. By whom may this power 
be exercised? 3. May one change his citizenship? 4. Who may 
and who may not be naturalized? 5. Explain the process of natur- 
alization. 

VI. Enumerate briefly the express powers of Congress. 

VII. 1. What is meant by the implied power of Congress, 
and what must be guarded against in their interpretation? 2. 
Name and explain those given in the text. 



CHAPTER XIV. 

THE EXECUTIVE DEPARTMENT OP THE FEDERAL 
GOVERNMENT. 

[ARTICLE II.] 

Section 1. [§ 1.] The executive Power shall be vested in a 
President of the United States of America. He shall hold his 
office during the Term of four Years, and, together with the Vice 
President, chosen for the same Term, be elected, as follows 

[§ 2.] Each State shall appoint, in such Manner as the Legis- 
lature thereof may direct, a Number of Electors, equal to the whole 
Number of Senators and Representatives to which the State may be 
entitled in the Congress: but no Senator or Representative, or 
Person holding an Office of Trust or Profit under the United States, 
shall be appointed an Elector., 

[ARTICLE XII.] 

The Electors shall meet in their respective States, and vote by 
ballot for President and Vice President, one of whom, at least, 
shall not be an inhabitant of the same State with themselves; 



The United States of America 157 

they shall name in their ballots the person voted for as President, 
and in distinct ballots the person voted for as Vice President, and 
they shall make distinct lists of all persons voted for as President, 
and of all persons voted for as Vice President, and of the number 
of votes for each, which lists they shall sign and certify, and trans- 
mit sealed to the seat of the government of the United States, 
directed to the Pesident of the Senate; — The President of the Sen- 
ate shall, in the presence of the Senate and House of Representa- 
tives, open all the certificates and the votes shall then be counted; — 
The person having the greatest number of votes for President, shall 
be the President, if such number be a majority of the whole num- 
ber of Electors appointed; and if no person have such majority, 
then from the persons having the highest numbers not exceeding 
three on the list of those voted for as President, the House of Rep- 
resentatives shall choose immediately, by ballot, the President. But 
in choosing the President, the votes shall be taken by States, the 
representation from each State having one vote; a quorum for this 
purpose shall consist of a member or members from two-thirds of 
the States, and a majority of all the States shall be necessary to 
a choice. And if the House of Representatives shall not choose a 
President whenever the right of choice shall devolve upon them, 
before the fourth day of March next following, then the Vice Presi- 
dent shall act as President, as in the case of the death or other 
constitutional disability of the President. — The person having the 
greatest number of votes as Vice President, shall be the Vice Presi- 
dent, if such number be a majority of the whole number of Elect- 
ors appointed, and if no person have a majority, then from the 
two highest numbers on the list, the Senate shall choose the Vice 
President; a quorum for the purpose shall consist of two-thirds of 
the whole number of Senators, and a majority of the whole number 
shall be necessary to a choice. But no person constitutionally in- 
eligible to the office of President shall be eligible to that of Vice 
President of the United States. 

[§ 3.] The Congress may determine the Time of chusing the 
Electors, and the Day on which they shall give their Votes; which 
Day shall be the same throughout the United States. 

[§ 4.] No Person except a natural born Citizen, or a Citizen 
of the United States, at the time of the Adoption of this Constitu- 
tion, shall be eligible to the Office of President; neither shall any 
Person be eligible to that Office who shall not have attained to the 



158 Civil Government 

Age of thirty-five Years, and been fourteen Years a Resident within 
the United States. 

[§ 5.1 In Case of the Removal of the President from Office, or 
of his Death, Resignation, or Inability to discharge the Powers and 
Duties of the said Office, the same shall devolve on the Vice Presi- 
dent, and the Congress may by Law provide for the Case of Re- 
moval, Death, Resignation, or Inability, both of the President and 
Vice President, declaring what Officer shall then act as President, 
and such Officer shall act accordingly, until the Disability be re- 
moved, or a President shall be elected. 

[§ 6.] The President shall, at stated Times, receive for his Ser- 
vices, a Compensation, which shall neither be encreased nor dimin- 
ished during the Period for which he shall have been elected, and 
he shall not receive within that Period any other Emolument from 
the United States, or any of them. 

[§ 7.] Before he enter on the Execution of his Office, he shall 
take the following Oath or Affirmation: — 

"I do solemnly swear (or affirm) that I will faithfully execute 
"the Office of President of the United States, and will to the best 
"of my Ability, preserve, protect and defend the Constitution of 
"the United States." 

Section 2. [§ 1.] The President shall be Commander in Chief 
of the Army and Navy of the United States, and of the Militia of 
the several States, when called into the actual Service of the 
United States; he may require the Opinion, in writing, of the 
principal Officer in each of the executive Departments, upon any 
Subject relating to the Duties of their respective Offices, and 
he shall have Power to grant Reprieves and Pardons for Offences 
against the United States, except in Cases of Impeachment. 

[§ 2.1 He shall have Power, by and with the Advice and Con- 
sent of the Senate, to make Treaties, provided two-thirds of the 
Senators present concur; and he shall nominate, and by and with 
the Advice and Consent of the Senate, shall appoint Ambassadors, 
other public Ministers and Consuls, Judges of the Supreme Court, 
and all other Officers of the United States, whose Appointments 
are not herein otherwise provided for, and which shall be estab- 
lished by Law : but the Congress may by Law vest the Appointment 
of such inferior Officers, as they think proper, in the President alone, 
in the Courts of Law, or in the Heads of Departments. 

[§ 3.] The President shall have Power to fill up all Vacancies 



The United States of America 159 

that may happen during the Recess of the Senate, by granting 
Commissions which shall expire at the End of their next Session. 

Section 3. He shall from time to time give to the Congress 
Information of the State of the Union, and recommend to their 
Consideration such Measures as he shall judge necessary and ex- 
pedient; he may, on extraordinary Occasions, convene both Houses, 
or either of them, and in Case of Disagreement between them, 
with Respect to the Time of Adjournment, he may adjourn them 
to such Time as he shall think proper; he shall receive Ambassa- 
dors and other public Ministers; he shall take Care that the 
Laws be faithfully executed, and shall Commission all the Officers 
of the United States. 

Section 4. The President, Vice President and all civil Officers 
of the United States, shall be removed from Office on Impeach- 
ment for, and Conviction of, Treason, Bribery, or other high Crimes 
and Misdemeanors. 

The President. The Constitution declares, "The execu- 
tive power shall be vested in a President of the United 
States of America." It proceeds to enumerate his pow- 
ers and duties, and among these says, "He shall take 
care that the laws be faithfully executed." These two 
provisions give in general outline the nature and scope 
of Presidential authority. He is to faithfully execute 
the will of the sovereign people as expressed in the laws 
which they have made through their constitutionally 
appointed representatives. Under other provisions, as 
to communications with Congress and the veto, he has 
large prerogatives in determining what the law shall be. 
He may express his desires that a certain policy should 
be carried out by appropriate legislation, and give his 
reasons for so doing, and he may veto measures which 
he does not approve. These are steps in the enactment 
of law. But if Congress shall not concur in his views, 
either by refusing to pass measures which he has favored, 
or by passing measures of which he has disapproved, he 
is as much bound by such action as the humblest citizen 



160 Civil Government 

in the land. It is the law as made by Constitutional 
authority which he is to execute, without reference to 
his personal opinion as to its expediency. 

It is apparent that when the Constitution was adopted 
the President was the- only executive officer peculiarly 
in the minds of the people. The plan for his selection is 
elaborate. The methods contained in the original in- 
strument proved unsatisfactory. It was changed by the 
adoption of the Twelfth Amendment, which took effect 
September, 1864. 

Manner of Election. The President and the Vice Presi- 
dent are not elected by direct vote of the people, but by 
a number of electors, selected in each State as its Legis- 
lature may determine, and equal to the whole represen- 
tation of that State in Congress. These electors consti- 
tute the Electoral College. They meet in their respec- 
tive States, and each votes by ballot for one candidate 
for President and one for Vice President. A list of these 
ballots is then made up, certified, sealed and transmitted 
by messenger to the capitol of the United States, directed 
to the President of the Senate. This officer opens the 
lists and counts the ballots in the presence of both Houses 
of Congress, and announces the result. If any person 
has secured a majority of the votes cast by the electors 
for President, he is declared elected to that office. If 
any has secured a majority of the votes cast for Vice 
President, he is declared elected to that office. If no one 
receives a majority of all the votes for President, there 
is no election to that office, and the House of Represen- 
tatives proceeds at once to choose a President by ballot 
from the three candidates having the highest number of 
votes. In such election the representatives vote by States, 
the representatives from each State having in the aggre- 
gate one vote. Two-thirds of the States must partici- 



The United States of America 161 

pate, and a majority of all the States is necessary to an 
election. If there is no election of a Vice President by 
the Electoral College, that fact is announced, and the 
Senate proceeds to elect that officer, choosing between 
the two candidates having the largest vote. The Sen- 
ators vote individually, and not by States. Two-thirds 
constitute a quorum, and a majority of the whole Senate 
is necessary to a choice. 

It follows, from the above provisions, that a majority 
of the votes cast for the electors by the people is not 
necessary to an election of a President or a Vice Presi- 
dent; in fact, it has several times occurred that the man 
elected President had received a minority of the popu- 
lar vote. The several political parties nominate their 
respective candidates. These parties may be about 
equally divided in one State, and one of them carries it 
by a thousand majority and elects all of the electors of 
the State from that party. This, of course, gives the 
whole vote of that State to the candidate of the suc- 
cessful party. In another State, equally populous and 
having the same number of electoral votes, the two parties 
are not equally divided, but practically all the votes 
belong to the party which was defeated in the other State. 
The candidate of this party gets almost all the popular 
votes of that State, but in the Electoral College he only 
gets the electoral vote of that State, which, in the sup- 
posed case, is the same as that given the opposing candi- 
date by the first State. As between these States there 
would be a tie in the vote, and no election; but a third 
State selects electors favorable to the candidate who was 
successful in the first State; they put their vote with 
the votes of the first State and make an election. The 

majority of the successful candidate in the third State 
11 



162 Civil Government 

may have been small, and the total popular vote secured 
by the successful candidate in States one and three may 
not equal the majority of the unsuccessful one in the 
second State, yet the one getting the majority of the 
electoral vote gets the office, to the exclusion of the one 
who has the majority of the popular vote. 

President's Duties: Head of the Executive Depart- 
ment. The duties of the President are very great. He 
is the head of the several departments of the executive 
branch of the Government, and upon him rests the ulti- 
mate responsibility as to each. These departments are 
now nine in number, viz. : Department of State, of the 
Treasury, of War, of Justice, of the Postoffice, of the 
Navy, of the Interior, of Agriculture, and of Commerce 
and Labor. The first of these historically antedates the 
office of President. Those of the Treasury, of War, of 
Justice, of the Postoffice, and of the Navy were created 
practically upon the organization of the Government. The 
Department of the Interior was created in 1849, of Agri- 
culture in 1889, and of Commerce and Labor in 1902. 

Each of these Departments is in charge of a chief, or 
head, called Secretary of the particular Department, ex- 
cept in the case of the Department of Justice, in which 
he is called the Attorney General, and in the Postoffice, in 
which he is called the Postmaster General. In the depart- 
ments there are thousands of subordinate officers, each 
of whom is responsible to his chief, and whose official 
action, in its ultimate results, affects the President either 
for good or bad. 

The heads of these Departments constitute the Presi- 
dent's Cabinet. They have two meetings each week. 
Their purpose is to keep the President fully informed 
upon all matters of importance, mutually to advise and 
counsel one another and the President, and to receive 



The United States of America 163 

instructions from him. The President is the real author- 
ity, and has the final decision of all questions in his 
hands. He gets the best information and advice that he 
can, and then determines large matters of policy himself, 
leaving the details and administrative part of the scheme 
to the heads and the subordinates of the Department to 
which the matter pertains. 

It is a singular fact that there is no reference in the 
Constitution to any of these Departments, as such, ex- 
cept in general terms. In stating the duties of the Presi- 
dent it is said that "he may require the opinion in writ- 
ing of the principal officers in each of the Executive De- 
partments upon any subject relating to the duties of 
their respective offices. " This does not seem to fore- 
shadow Cabinet meetings of the kind now in vogue. 
There is nothing in the Constitution indicating the num- 
ber of the departments, nor the manner of their estab- 
lishment or organization; hence, the whole matter is left 
w^ith Congress and the President. The present arrange- 
ment has grown up under their joint action, and is 
very effective. It has the advantage of flexibility and 
ease of adaptation to varying conditions as the Govern- 
mental needs may suggest or require. 

Pardons. The pardoning power is also vested in the 
President. It is one of extreme importance and delicacy. 
Errors are constantly made in the administration of the 
criminal law, and in many instances change of conditions 
subsequent to the trial make it proper to relieve from 
penalties, justly and legally imposed at the time the 
judgments were entered. These nice balancings between 
justice and mercy, determinations as to upholding the 
adjudications of the courts, and setting them aside in 
proper cases, taxes to the utmost both the brain and 



164 Civil Government 

sympathy of the most capable. This all falls upon the 
President. 

Treaties. The next duty imposed upon the President 
is to make treaties with foreign Nations. In this he 
acts in conjunction with the Senate, but the initiative 
is with him. Usually the terms of the agreement are 
passed upon and arranged with the foreign power, and 
the matter in its final form is presented to the Senate 
for its judgment. Occasionally the President asks the 
judgment and advice of the Senate before arranging the 
final terms with the other Nation. 

A treaty is an agreement between two or more inde- 
pendent states, and not a legislative act. But, under 
the Constitution of the United States, treaties made with 
other Nations are declared to be a part of the law of the 
land, and, in this sense, they are binding upon all the 
persons subject to the Governments entering into them, 
and must be obeyed both by the officers in their public 
actions and by the citizens in their private capacities. 

Appointments and Removals. The President makes 
nominations to the Senate of all ambassadors and other 
public ministers, consuls, and judges of the Supreme 
Court, and all other officers of the United States, except 
Senators and members of Congress, unless there be ex- 
press law authorizing some one else to appoint. In all im- 
portant offices this appointment must be concurred in 
by two-thirds of the Senate. In case of such inferior 
officers as Congress may designate the appointment does 
not need confirmation by the Senate. Congress can lodge 
the power of appointment to inferior positions with the 
courts or the heads of Departments. All Federal offices 
of consequence are appointed by the President. The 
highest he selects for himself, usually in conference with 
the leaders of the political party by which he was elected. 



The United States of America 165 

The less important are filled on recommendation of mem- 
bers of Congress from the district in which the office is 
to be filled, or by political influence or standing. 

This power of appointment, extending, as it does, 
throughout the whole United States, and to many offices 
in foreign countries, gives a patronage which is danger- 
ous in the extreme to the purity and efficiency of the 
public service; but no better scheme has been devised, 
and as trust must be reposed somewhere the present 
plan will likely continue, modified by the doctrines and 
methods involved in the Civil Service and similar laws. 

The President also fills all vacancies in the higher 
Federal offices except in Congress. There are a great 
many Federal offices of which the length of term is not 
fixed by law or expressly made to depend upon good be- 
havior. In such cases it seems that the power to appoint 
carries the power to remove, and this gives still further 
power to the party in control of the Government. 

Intercourse With Foreign Nations. The President is 
also the officer designated to receive Ambassadors and 
other Public Ministers. This, and his power to nominate 
the Representatives of this Government in foreign states, 
make him practically the medium of communication 
between the United States and all other Governments. 

Military Powers. Beside the civil powers of the Presi- 
dent, which we have just considered, "he is Commander- 
in-Chief of the Army and Navy of the United States, and 
of the Militia of the several States when called into the 
actual service of the United States/' Under ordinary 
conditions these responsibilities do not demand a large 
share of time or attention, but when there is war they 
become very onerous. 

Powers in Connection With Legislation. These pow- 
ers, including the President's initiative regarding legis- 



186 Civil Government 

lation and his veto power, have been discussed in the 
preceding chapter. 

Impeachment. "The President, Vice President, and 
all civil officers of the United States, shall be removed 
from office on impeachment for and conviction of treason, 
bribery, or other high crimes and misdemeanors." 

An Impeachment is a charge made by the House of 
Kepresentatives to the Senate accusing an officer of an 
offense. 

All civil officers of the United States are subject to 
impeachment. 

The offense charged must be treason, felony, or other 
high crime or misdemeanor. 

The Senate sits as a court, and tries the officer on the 
accusation made by the House, and decides whether or 
not he is guilty. A two-thirds vote is required to con- 
vict the accused. The punishment is removal from the 
office then held, and disqualification for holding any 
other office of honor, trust or profit under the United 
States. This power has been exercised very rarely, and 
convictions have been still more infrequent. 

Plan of Succession. Security against vacancy in the 
Presidential office by the death, inability, or resignation 
of the President is provided for in part by the establish- 
ment of the office of Vice President. This was as far 
as the scheme of succession was worked out in detail 
when the Constitution was adopted. But still it was 
foreseen that two vacancies might occur in the course of 
four years, and Congress is given power to provide for 
this by declaring what "officer shall then act as Presi- 
dent." Congress has eiercised this power, and the fol- 
lowing cabinet officers in the order given, if they possess 
the necessary qualifications under the Constitution and 
have been appointed by the President and confirmed by 



The United States of America 167 

the Senate and are not under impeachment, shall act as 
President in case of death, removal, resignation, or ina- 
bility of both the President and Vice President, viz.: 
Secretary of State, Secretary of the Treasury, Secretary 
of War, Attorney General, Postmaster General, Secre- 
tary of the Navy, and Secretary of the Interior. Con- 
gress has also provided for a special election for Presi- 
dent under the conditions stated above. 
RECAPITULATION. 

The Executive power of the United States is declared 
by the Constitution to be vested in the President. 

The President must execute the law, not his personal 
policies. 

The Constitution provides for the election of a Vice 
President, who acts as President in case of the Presi- 
dent's removal from office, or death, or resignation, or 
inability to act. 

The President and Vice President are elected by elect- 
ors. The people of each State have as many electors as 
it has members in both Houses in Congress. These 
electors meet at the Capitols of their respective States 
and each casts one ballot for President and one for Vice 
President. All these ballots are sent to the President 
of the Senate and counted by him in the presence of both 
Houses of Congress. If any person has a majority for 
either office he is elected. If no one is chosen for Presi- 
dent a President is elected by the House. If no one is 
chosen for Vice President a Vice President is elected 
by the Senate. 

The Cabinet is composed of the heads of the several 
Executive Departments. It is an advisory council, only, 
the ultimate responsibility in all matters resting on the 
President. 

The pardoning power is in the President. 



168 Civil Government 

Treaties are made by the President with the concur- 
rence of the Senate. 

The President appoints all important Federal officers 
except members of Congress. In most instances the 
concurrence of the Senate is necessary. He has large 
powers as to removals. 

The President is the head of the Foreign Diplomatic 
Service and conducts in person or through his subor- 
dinates all intercourse with foreign Nations. 

The President is Commander-in-Chief of the Army and 
Navy of the United States. 

The President is subject to impeachment by the House 
before the Senate for treason or other high crime or 
misdemeanor. 

QUESTIONS. 

I. 1. In whom is the executive power of the Federal Govern- 
ment vested? 2. Give in general the nature and scope of the 
President's authority. 3. Give in full the plan of election of the 
President and the Vice President. 4. State the nine branches 
of the Executive Department. 5. What constitutes the Presi- 
dent's Cabinet, and what are its purpose and duties? 6. What 
is the order of succession to the office of President? 

II. 1. Explain the President's pardoning power. 2. His power 
to make treaties. 3. His appointive and removal powers. 4. 
His control over intercourse with foreign Nations. 5. His mili- 
tary powers. 

III. 1. Define impeachment, and explain the process employed 
in it. 

CHAPTER XV. 

JUDICIAL DEPARTMENT OF THE FEDERAL GOV- 
ERNMENT. 

We found that the judicial department of a government 
is that which interprets its laws and applies them to 



The United States of America 169 

individuals. These are extremely important powers and 
duties. The agencies through which the government ex- 
ercises these functions are called courts, and all of the 
courts of a government constitute its judicial system. In 
establishing such a system the sovereign determines what 
kinds of cases each class of courts may try. This right 
to try cases is called jurisdiction, and all the kinds of 
cases which any class of courts is authorized to try are 
said to be within the jurisdiction of those courts. A 
court in trying and deciding a case within its jurisdic- 
tion is exercising the powers of the sovereign creating 
it, and its decisions must be obeyed by everyone. If 
such decisions are not obeyed voluntarily, all the powers 
of the sovereign establishing the court will be put forth 
to enforce them. On the other hand, if the court should 
intentionally or by mistake undertake to try a case which 
was not within its jurisdiction, it would be acting with- 
out authority, and its decisions would be void. No one 
need obey it voluntarily, and there would be no power to 
force obedience. 

Federal Judicial System. The Judicial Department of 
the Federal Government is established by Article III of 
the Constitution and several Amendments thereto and 
laws in pursuance thereof. 

Article III, Constitution of the United States. 

Section 1. The judicial power of the United States shall be 
vested in one Supreme Court and in such inferior courts as Con- 
gress may, from time to time, ordain and establish. The judges, 
both of the Supreme and inferior courts, shall hold their offices 
during good behavior; and shall, at stated times, receive for their 
services a compensation, which shall not be diminished during their 
continuance in office. 

Section 2. The judicial power shall extend to all cases in law 
and equity arising under this Constitution; the laws of the United 
States and treaties made, or which shall be made, under their 



170 Civil Government 

authority; to all cases affecting ambassadors, other public ministers 
and consuls; to all cases of admiralty and maritime jurisdiction; 
to controversies to which the United States shall be a party; to 
controversies between two or more States; between a State and 
citizens of another State ; between citizens of different States, be- 
tween citizens of the same State claiming land under grants of 
different States, and between a State, or the citizens thereof, and 
foreign States, citizens, or subjects. 

In all cases affecting ambassadors, other public ministers, and 
consuls, and those in which a State shall be a party, the Supreme 
Court shall have original jurisdiction. In all the other cases be- 
fore mentioned, the Supreme Court shall have appellate jurisdic- 
tion, both as to law and fact, with such exceptions and under such 
regulations as Congress shall make. 

The trial of all crimes, except in cases of impeachment, shall be 
by j ur j; and such trial shall be held in the State where said crimes 
shall have been committed; but when not committed within any 
State, the trial shall be at such place or places as Congress may 
by law have directed. 

The foregoing is the Judiciary Article of the Constitu- 
tion, as originally adopted. It was objected that there 
were not restrictions enough around the judiciary, and 
several amendments to cure these defects were proposed 
and adopted, as follows: 

Article IV. The right of the people to be secured in their per- 
sons, houses, papers, and effects, against unreasonable searches 
and seizures, shall not be violated, and no warrants shall issue 
but upon probable cause, supported by oath or affirmation, and 
particularly describing the place to be searched, and the persons 
or things to be seized. 

Article V. No person shall be held to answer for a capital, or 
otherwise infamous, crime, unless on a presentment or indictment 
of a grand jury, except in cases arising in the land or naval forces, 
or in the militia, when in the actual service in time of war or 
public danger; nor shall any person be subject for the same offense 
to be twice put in jeopardy of life or limb; nor shall he be compelled, 
in any criminal case, to be a witness against himself, nor be de- 
prived of life, liberty or property without due process of law; 
nor shall private property be taken for public use without just 
compensation. 



The United States of America 171 

Article VI. In all criminal prosecutions, the accused shall en- 
joy the right of a speedy and public trial, by an impartial jury 
of the State and district wherein the crime shall have been com- 
mitted, which district shall have been previously ascertained by 
law, and to be informed of the nature and cause of the accusation; 
to be confronted with the witnesses against him; to have com- 
pulsory process for obtaining witnesses in his favor, and to have 
the assistance of counsel for his defense. 

Article VII. In suits at common law, where the value in contro- 
versy shall exceed twenty dollars, the right of trial by jury shall 
be preserved, and no fact tried by a jury shall be otherwise re- 
examined, in any court of the United States, than according to 
the rules of the common law. 

Article XI. The judicial powers of the United States shall not 
be construed to extend to any suit in law or equity, commenced 
or prosecuted against one of the United States by citizens of an- 
other State, or by citizens or subjects of any foreign State. 

These Constitutional provisions, and acts of Congress 
passed in pursuance thereof, constitute the plan made 
by the people of the United States for exercising their 
judicial functions. 

It is noticeable that only one court is provided for 
by name in the Constitution, and neither the number nor 
qualifications of judges for that court are given, and 
only two classes of cases are placed within its jurisdic- 
tion: those in which ambassadors, ministers, or consuls 
are to be affected, or in which a State is a party. As 
to all other matters Congress is left free to provide. This 
gives great elasticity to the system, and enables Congress 
to provide such courts and give them such jurisdiction 
within the limits of the powers of the Federal Govern- 
ment as the development of the country shall require. 
While this freedom exists as to the power to be con- 
ferred upon the different courts, there are several pro- 
visions in the Constitution which are quite restrictive 
as to the methods of procedure in the courts when ere- 



172 Civil Government 

ated. Thus, the differences between law and equity are 
recognized, and it is held that this recognition requires 
the continuance of the distinction; and that the refer- 
ences to trial by jury mean a jury of twelve men, ac- 
cording to the course of the common law, etc. 

An analysis of the foregoing provisions shows that the 
judicial power of the Federal Government embraces, and 
is limited to, the following matters: 

1. To all cases in law and equity arising under the 
Constitution and laws of the United States, and treaties 
made, or which shall be made, under its authority. 

2. To all cases affecting ambassadors and other pub- 
lic ministers and consuls. 

3. To all cases of admiralty and maritime jurisdiction. 

4. To controversies to which the United States shall 
be a party. 

5. To controversies between two or more States. 

6. Between a State and citizens of another State. 

7. Between citizens of different States. 

8. Between citizens of the same State claiming lands 
under grants of different States. 

9. Between a State, or citizens thereof, and foreign 
states, citizens, or subjects. 

Congress has passed several judiciary acts since the 
foundation of the Government, each providing such in- 
ferior courts as the interests of the country seemed at 
the time to demand. The system now existing consists 
of the Supreme Court, provided by the Constitution, nine 
Circuit Courts of Appeals, a large number of Circuit 
Courts, a still larger number of District Courts, United 
States Commissioners, and a number of Courts of Claims 
of different designations, and courts for the District of 
Columbia. 

Supreme Court. There is one United States Supreme 



The United States of America 173 

Court. It sits at Washington, D. C, and as now organ- 
ized consists of nine judges, one, the presiding officer, 
called the Chief Justice, and eight Associate Justices. 
They are appointed by the President with the approval 
of the Senate. From the American point of view, and 
most probably in fact, it is the highest tribunal in the 
world. 

It has both original and appellate jurisdiction. Its 
original jurisdiction is limited to cases "affecting 
ambassadors, other public ministers and consuls, and 
those in which a State is a party." Its appellate juris- 
diction is much larger, and includes almost all cases which 
are tried in any other Federal court, and all cases tried 
in any State court in which a Federal question is raised. 
Cases raise a Federal question if either party claims some 
legal right under a law of the United States, and if such 
claim has been denied in the State court. It does not 
matter how small the amount of the claim may be, if 
it is made under the Constitution and the laws of the 
United States, and is denied, the one claiming it can take 
the case from the highest State court in which the case 
can be tried to the Supreme Court of the United States 
and have that court settle it. This is so in order that 
all questions which involve the Constitution or applica- 
tion of the Constitution of the United States may be 
brought before the Supreme Court, so that the same 
court will decide them all, and thus make the law the 
same throughout the Union. 

Circuit Courts of Appeals. When the Government was 
organized and for a long time thereafter the Supreme 
Court could and did try all cases appealed from the 
lower Federal courts. Appeals became so numerous that 
one court could not dispose of them. Under the power 
given it in the Constitution Congress created a class of 



174 Civil Government 

courts known as the Circuit Courts of Appeals, with ap- 
pellate jurisdiction only. There are nine of these courts, 
sitting at different places in the Union. Each is com- 
posed of three judges. Judges of the Supreme Court, 
circuit judges and district judges are all authorized 
to sit in these courts. There are a great many circuit 
and district judges, and they are so divided that there 
will be three judges present at each session of a Circuit 
Court of Appeals. It is required that at least one of 
the judges holding each session of the court shall be either 
a justice of the Supreme Court or a circuit judge. These 
courts have no original jurisdiction. They have appellate 
jurisdiction of all cases of importance tried in either the 
circuit or the district courts of the district in which the 
courts of appeals are held, respectively. 

Circuit Courts. These are the highest Federal courts 
which have general original jurisdiction. Almost every 
case of importance tried in the Federal courts is either 
brought in one of these courts, or is brought in some 
State court and removed into one of these. These courts 
may be held by any Federal judge; that is, by a justice 
of the Supreme Court, or by a circuit judge, or by a 
district judge. Quite frequently two judges sit together. 

These courts and many State courts have concurrent 
jurisdiction over many cases. In a great many such 
cases, if the suit is brought in a State court, it can be 
removed into the Federal court by filing a petition in 
the State court and a bond to carry the case into the 
Federal court. When these papers are filed in the State 
court that tribunal sends the case over to the Federal 
court to be tried there. 

District Courts. The lowest trial courts in the Federal 
system are the District Courts. These have jurisdiction 
over some matters of importance, but most of the cases 



The United States of America 175 

tried by them are relatively small. They are usually 
held by Federal district judges, but sometimes by circuit 
judges. 

Congress cannot give any Federal court the power to 
try any case which does not come within the scope of 
the judicial power of the United States as conferred in 
the Constitution, which was set out above. If it should 
attempt to do so, its action would be void. 

Distinctions Between Law and Equity. The Federal 
Constitution recognizes and keeps alive the difference 
between common law and equity, and Congress in creat- 
ing the several classes of courts and in fixing the proced- 
ure in them has observed these differences. 
. Those rights which were recognized by the ancient 
laws and customs from "the time when the memory of 
man runneth not to the contrary," or which have their 
origin in some act of Parliament, are common law rights. 
The remedies for the violation of these common law 
rights are called common law remedies, and the courts 
in which these common law rights are enforced and com- 
mon law remedies are applied are common lav/ courts. 
The procedure, that is, the method of conducting a suit 
in these common law courts is very ancient, very formal 
and logical. They are limited by strict rules as to the 
kinds of remedies which may be gotten, and as to the 
pleadings and evidence. All cases in them are tried by 
jury. 

At a time much later than that at which the common 
law courts were established and their methods fixed 
rights were claimed which were of such nature that the 
common law would not recognize them, nor give any 
remedy for their violation. These claims would be 
brought to the king by petition. He would grant relief 
in some cases, but not in others. He said that he granted 



176 Civil Government 

or denied rights according to his conscience. Later he 
gave one of his officers, called his chancellor, the power 
to hear these cases. This chancellor would exercise the 
king's conscience and grant or refuse the requests as 
he thought the king's conscience would direct. He heard 
the petitions himself, without a jury, and gave such rem- 
edy as the case seemed to demand. As time passed and 
case after case came before the chancellor, rules for 
hearing and deciding them grew up. The courts held by 
the chancellor were courts of equity, and the rights en- 
forced in them are called equitable rights. The rules 
for trying cases in them are the rules for procedure 
in equity, and the remedies they give are equitable rem- 
edies. The differences between these equitable rights, 
procedure, remedies, and courts, on the one hand, and 
the common law rights, procedure, remedies, and courts, 
on the other, are too technical and complex to be taken 
up here. They existed when the Constitution was writ- 
ten, and are recognized in it, and must be maintained 
in the Federal system until they are done away with by 
Constitutional amendment. 

Federal Judges. All Federal Judges are appointed by 
the President with the approval of the Senate. They 
hold office for life, subject to removal by impeachment 
for cause, and receive such compensation as is fixed by 
law. 

Concurrent Jurisdiction of the Federal and State 
Courts. When two or more courts have power under the 
law to try the same case, they are said to have concur- 
rent jurisdiction over that case; that is, either one may 
try it, and its decisions will be final. If only one court, 
or courts of only one class, can try a case, the jurisdic- 
tion over the case is exclusive in such court or class of 
courts. 



The United States of America 177 

As to some cases, the jurisdiction of the Federal courts 
is exclusive of that of the State courts ; that is, there are 
some kinds of cases which can be tried only in a Fed- 
eral court. A case against a foreign ambassador is an 
example. No State court can try such a case. 

As to some cases the jurisdiction of the State courts is 
exclusive of that of the Federal courts; that is, these 
cases can be tried in a State court, but not in a Federal 
court. An example of this is a suit between two men, 
living in the same State, over a tract of land in that 
State. There is no Federal court which has power to try 
such a case. 

There are a great many cases in which the jurisdiction 
of the Federal and State courts is concurrent. These cases 
may be brought in either a United States or a State 
court. For example, if two men live in different States, 
and the one owes the other as much as $2,000, the credi- 
tor can sue the debtor either in the proper State court 
or in the United States circuit court held in the district 
in which the debtor resides. Either of these courts has 
the power to try it. 

Every judge, whether Federal or State, must obey the 
Constitution and laws of both the United States and of 
the State in which the court is held. Every State officer 
is sworn to support the Constitution of the United States 
and the laws made under it. This includes obedience and 
enforcement of obedience from others. Neither a Fed- 
eral nor a State judge can disregard these laws. As the 
United States Constitution recognizes the right of the 
States to control and to make laws as to all matters not 
given over to the Federal Government in the Constitu- 
tion, this binds the Federal judges to obey the laws of 
the State in which they are holding court, as far as they 
12 



178 Civil Government 

do not conflict with the Federal Constitution and Stat- 
utes. In case of conflict between the Constitution and 
laws of the United States and an attempted State law, 
the latter must be ignored. 

RECAPITULATION. 

The judicial function of government is to interpret the 
law and apply it to individual cases. 

In creating a judicial system, sovereignty divides its 
judicial power among different classes of courts. 

The authority thus conferred upon a court is its ju- 
risdiction. 

Within its jurisdiction a court's action is valid and 
must be obeyed. Outside its jurisdiction its action is void. 

The judicial power of the Federal Government is con- 
fined to those matters enumerated in the Federal Consti- 
tution. 

All of this power has not been delegated to Federal 
courts. 

The Supreme Court is the only one mentioned in the 
Constitution. Congress has power to complete the system. 

The Supreme Court has but little original jurisdiction, 
most of its power being appellate. 

Any case "involving a Federal question/' whether 
tried in a State or Federal court, may be carried to the 
Supreme Court of the United States. 

The Circuit Courts of Appeals are courts of large ap- 
pellate powers, to which almost all cases tried in the 
circuit or district courts may be taken for revision. 

Circuit Courts are the most important trial courts in 
the Federal system. They have jurisdiction of nearly 
all important civil suits and of most of the important 
criminal cases which can be tried in Federal courts. 

District Courts are the lowest Federal courts. 



The United States of America 179 

The Constitution of the United States recognizes the 
distinction between law and equity, and all Federal courts 
must retain the two systems. 

Federal judges are appointed by the President, and 
hold office for life. 

In some cases the jurisdiction of the Federal courts is 
exclusive of those of the States. In other instances the 
jurisdiction of the State courts is exclusive of those of the 
Federal Government. Over most civil suits over which 
the Federal courts have jurisdiction, the State courts have 
concurrent jurisdiction. 

QUESTIONS. 

I. 1. What is meant by the judicial function of government? 2. 
Why do the people, in making a Constitution, provide for a num- 
ber of different classes of courts? 3. Why is it that the decision 
of a court made within its jurisdiction must be obeyed? 

II. 1. How can we ascertain the nature and extent of the 
judicial powers of the United States Government? 2. Name the 
different classes of courts in the Federal Judicial system, and give 
the jurisdiction of each. 3. By whom and under what authority 
are the Federal Courts created? 

III. 1. What is meant by the distinction between law and 
equity? Does the Federal Constitution recognize this? 2. What 
is meant by concurrent jurisdiction between Federal and State 
courts? Are there any cases over which such jurisdiction exists? 
3. What is meant by removing a case from the State to the 
Federal Courts? How is this done? 



CHAPTER XVI. 

RESTRICTIVE PROVISIONS OF THE FEDERAL 
CONSTITUTION. 

There are many provisions in the Federal Constitution 
which are restrictive. Some of these limit the powers of 



180 Civil Government 

the Federal Government, some those of the State Govern- 
ments, and some those of both. These restrictive provi- 
sions are in part for the benefit of the Federal Govern- 
ment or State Government, but the larger number of 
them are for the benefit of individuals. Taken together 
they are among the most valuable parts of the Con- 
stitution. They make very clear the distinction between 
a purely democratic government, in which the will of 
the majority is supreme, and a constitutional democ- 
racy, in which designated rights of the minority and of 
the individual are protected even against the will of the 
majority. 

The restrictive articles and sections of the Constitu- 
tion and its amendments are as follows: 

Limitations on the Federal Government Only. First, 
in Constitution as originally adopted : 

Section 9. [§ 1.] [The Migration or Importation of such Per- 
sons as any of the States now existing shall think proper to ad- 
mit, shall not be prohibited by the Congress prior to the Year one 
thousand eight hundred and eight, but a Tax or duty may be im- 
posed on such Importation, not exceeding ten dollars for each Per- 
son.] 

[§ 2.] The Privilege of the Writ of Habeas Corpus shall not 
be suspended, unless when in Cases of Rebellion or Invasion the 
public Safety may require it. 

[§ 3.] No Bill of Attainder or ex post facto Law shall be 
passed. 

[§ 4.] No Capitation, or other direct, Tax shall be laid, unless 
in Proportion to the Census or Enumeration herein before directed 
to be taken. 

[§ 5.] No Tax or Duty shall be laid on Articles exported from 
any State. 

[§ 6.] No Preference shall be given by any Regulation of Com- 
merce or Revenue to the Ports of one State over those of another: 
nor shall Vessels bound to, or from, one State, be obliged to enter, 
*clear, or pay Duties in another. 

[§ 7.] No Money shall be drawn from the Treasury, but in Con- 



The United States of America 181 

sequence of Appropriations made by Law; and a regular State- 
ment and Account of the Receipts and Expenditures of all public 
Money shall be published from time to time. 

[§ 8.] No Title of Nobility shall be granted by the United 
States: And no Person holding any Office of Profit or Trust under 
them, shall, without the Consent of the Congress, accept of any 
present, Emolument, Office, or Title, of any kind whatever, from 
any King, Prince, or foreign State. Article II, Section 9, Clauses 
1-8. 

[§ 3.] The Senators and Representatives before mentioned, and 
the Members of the several State Legislatures, and all executive 
and judicial Officers, both of the United States and of the several 
States, shall be bound by Oath or Affirmation, to support this Con- 
stitution; but no religious Test shall ever be required as a Quali- 
fication to any Office or public Trust under the United States. 
Article VI, Section 3. 

Articles in addition to and amendment to the Consti- 
tution of the United States of America, proposed by Con- 
gress, and ratified by the Legislatures of the several 
States, pursuant to the fifth Article of the original Con- 
stitution. 

[ARTICLE I.] 

Congress shall make no law respecting an establishment of re- 
ligion, or prohibiting the free exercise thereof; or abridging the 
freedom of speech, or of the press; or the right of the people peace- 
ably to assemble, and to petition the Government for a redress of 
grievances. 

[ARTICLE II.] 
A well regulated Militia, being necessary to the security of a 
free State, the right of the people to keep and bear Arms, shaft 
not be infringed. 

[ARTICLE III.] 
No Soldier shall, in time of peace be quartered in any house, 
without the consent of the Owner, nor in time of war, but in a 
manner to be prescribed by law. 

[ARTICLE IV.] 

The right of the people to be secure in their persons, houses. 
papers, and effects, against unreasonable searches and seizures, shall 



182 Civil Government 

not be violated, and no Warrants shall issue, but upon probable 
cause, supported by Oath or affirmation, and particularly describ- 
ing the place to be searched, and the persons or things to be seized. 

[ARTICLE V.] 
No person shall be held to answer for a capital, or otherwise in- 
famous crime, unless on a presentment or indictment of a Grand 
Jury, except in cases arising in the land or naval forces, or in 
the Militia, when in actual service in time of War or public danger; 
nor shall any person be subject for the same offense to be twice 
put in jeopardy of life or limb; nor shall be compelled in any 
criminal case to be a witness against himself, nor be deprived of life, 
liberty, or property, without due process of law; nor shall private 
property be taken for public use, without just compensation. 

[ARTICLE VL] 

In all criminal prosecutions the accused shall enjoy the right to 
a speedy and public trial, by an impartial jury of the State and 
district wherein the crime shall have been committed, which district 
shall have been previously ascertained by law, and to be informed 
of the nature and cause of the accusation; to be confronted with 
the witnesses against him; to have compulsory process for obtain- 
ing witnesses in his favor, and to have the Assistance of Counsel 
for his defence. 

[ARTICLE VIL] 

In suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved, 
and no fact tried by a jury shall be otherwise re-examined in any 
Court of the LTnited States, than according to the rules of the com- 
mon law. 

[ARTICLE VIII.] 

Excessive bail shall not be required, nor excessive fines imposed, 
nor cruel and unusual punishments inflicted. 

[ARTICLES IX.] 
The enumeration in the Constitution, of certain rights, shall not 
be construed to deny or disparage others retained by the people. 

[ARTICLE X.] 
The powers not delegated to the LTnited States by the Consti- 



The United States op America 183 

tution, nor prohibited by it to the States, are reserved to the States 
respectively or to the people. 

[ARTICLE XI.] 
The Judicial power of the United States shall not be construed 
to extend to any suit in law or equity, commenced or prosecuted 
against one of the United States by Citizens of another State, or 
by Citizens or Subjects of any Foreign State. 

Limitations on the State Governments Only. First, 
those in Constitution as originally adopted: 

Section 10. [§ 1.] No State shall enter into any Treaty, Alli- 
ance, or Confederation; grant Letters of Marque and Reprisal; 
coin Money; emit Bills of Credit; make any Thing but gold and 
silver Coin a Tender in Payment of Debts; pass any Bill of At- 
tainder, ex post facto Law, or Law impairing the Obligation of 
Contracts, or grant any Title of Nobility. 

[§ 2.] No State shall, without the Consent of the Congress, lay 
any Imposts or Duties on Imports or Exports, except what may be 
absolutely necessary for executing its inspection Laws: and the net 
Produce of all Duties and Imposts, laid by any State on Imports 
or Exports, shall be for the Use of the Treasury of the United 
States; and all such Laws shall be subject to the Revision and 
Controul of the Congress. 

[§ 3.] No State shall, without the Consent of Congress, lay 
any duty of Tonnage, keep Troops, or Ships of War in time of 
Peace, enter into any Agreement or Compact with another State, 
or with a foreign Power, or engage in War, unless actually invaded, 
or in such imminent Danger as will not ladmit of delay. 

Second, in Amendments: 

Article XIV. 
Section 1. All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the United 
States and of the State wherein they reside. No State shall make 
or enforce any law which shall abridge the privileges or immunities 
of citizens of the United States; nor shall any State deprive any 
person of life, liberty, or property, without due process of law: 
nor deny to any person within its jurisdiction the equal protection 
of the laws. 



184 Civil Government 

Section 2. Representatives shall be apportioned among the sev- 
eral States according to their respective numbers, counting the whole 
number of persons in each State, excluding Indians not taxed. But 
when the right to vote at any election for the choice of electors 
for President and Vice President of the United States, Represen- 
tatives in Congress, the Executive and Judicial officers of a State, 
or the members of the Legislature thereof, is denied to any of the 
male inhabitants of such State, being twenty-one years of age, and 
citizens of the United States, or in any way abridged, except for 
participation in rebellion, or other crime, the basis of representa- 
tion therein shall be reduced in the proportion which the number 
of such male citizens shall bear to the whole number of male citi- 
zens twenty-one years of age in such State. 

Congress shall have power to enforce this article by appropriate 
legislation. 

Limitations Binding on Both: 

Akticle XIII. 

Section 1. Neither slavery nor involuntary servitude, except as 
a punishment for crime whereof the party shall have been duly 
convicted, shall exist within the United States, or any place sub- 
ject to their jurisdiction. 

Section 2. The Congress shall have power to enforce, by appro- 
priate legislation, the provisions of this article. 

Article XV. 

Section 1. The right of citizens of the United States to vote 
shall not be denied or abridged by the United States or by any 
State on account of race, color, or previous condition of servitude. 

Section 2. The Congress shall have power to enforce this ar- 
ticle by appropriate legislation. 

Before considering these in detail it may be well to 
observe that it is a general rule established and enforced 
by the United States Supreme Court that a restriction 
on the powers of Government contained in the Constitu- 
tion does not apply to the State Governments, unless it 
is so stated in the Constitution itself. Hence Section 9, 
Article II, of the original Constitution, and Amendments 



The United States of America 185 

I to XI inclusive, are not restrictions on the powers 
of States, but only on the Federal Government. In 
order to restrict the powers of the States as to some of 
the matters covered by those limitations on the Federal 
Government the Fourteenth Amendment was adopted. 
This Amendment is not so broad as the aggregate restric- 
tions on the Federal Government, hence a State may ex- 
ercise some power from the exercise of which the Federal 
Government is prohibited. For example, a State, so far 
as the Federal Government is concerned, can abolish 
trial by jury in its courts, while an act of Congress at- 
tempting to deprive a man charged with crime of this 
right would be unconstitutional and void. 

It will not be necessary to discuss separately each 
of the provisions which have been quoted. Some of 
the more important will be considered briefly, and in 
such order as is most convenient. 

The first clause quoted relates to slavery and is not 
now of great consequence. 

Habeas Corpus. The writ of Habeas Corpus is an an- 
cient writ of common law by which any person unlaw- 
fully restrained by another can compel the one having 
him in custody to bring him before a judge or magis- 
trate and let the cause of his detention be inquired into. 
If it is found that his confinement is lawful, he will be 
kept in custody. If it is not so found, he will be set at 
liberty. This writ, though not mentioned by name in 
the Magna Charta, is practically provided for in it. 
Even after the issuance of such a writ had come to be 
considered as a right in ordinary cases and under or- 
dinary conditions, the officers of government frequently 
claimed the right to deny or suspend it in special cases 
under special conditions. It is to make the right to 
this writ clear and indisputable, and to provide when and 



186 Civil Government 

how it shall be suspended by the United States Govern- 
ment, that this clause was inserted. The privilege of 
this writ cannot be suspended by the United States 
authorities except in case of actual rebellion or inva- 
sion; in short, in case of actual war, and then only when 
required by the public safety. This clause has no ap- 
plication to the State Governments. 

Bills of Attainder. Taking Article I, Sections 9 and 
10, together, we find that both the Federal and State 
Governments are forbidden to pass ex post facto laws or 
Bills of Attainder. A bill of attainder is a law by which 
the government attempts to punish an individual with- 
out allowing him a trial in a court of law according to 
the prevailing usages. 

Ex Post Facto Laws. An Ex Post Facto law is one 
that undertakes to make punishable as a crime an act 
or omission which was lawful when it occurred, or which 
undertakes to punish an act or omission which was crim- 
inal when it occurred more severely than by the pun- 
ishment then provided, or which requires less proof to 
secure conviction of crime than was necessary when it 
occurred. Both the Federal Government and the States 
are forbidden to pass such laws. 

Laws Impairing the Obligation of Contracts. This lim- 
itation does not apply to the Federal Government. Such 
laws may be passed by Congress if there be no other Con- 
stitutional objection to them. It does apply to all the 
State Governments. The obligation of a contract is the 
power which the person to whom a legal promise is made 
has to compel the one making him the promise to fulfill 
it, or make substantial and just compensation for failure 
to do so. A State can pass no law which impairs, that 
is, lessens, to any considerable extent, or destroys this 



The United States of America 187 

right of the promisee to the substantial benefit of his 
agreement. 

Religious Rights. The First Amendment forbids Con- 
gress to pass any law respecting the establishment of re- 
ligion or prohibiting the free use thereof. This statute 
does not apply to the States, but similar provisions are 
found in most, if not all, of the State Constitutions. The 
"establishment of a religion" is the selection by a gov- 
ernment of some particular religion or denomination 
which shall be recognized by that government and com- 
pelling all the people to contribute to its support. 

A free exercise of religion as here used means full and 
free expression and action upon such religious opinions 
as one sees fit, without accountability to the Government 
or anyone else therefor as matter of religion. It does 
not mean that an individual may do anything which is 
in itself harmful to the public or violative of the private 
rights of others and then claim immunity because he 
thought such an act his religious duty. If a man should 
conclude that it is his duty to offer up a human sacri- 
fice to his god, and should seize upon another and kill 
him for that purpose, he could not protect himself from 
punishment by proving that he was obeying his religious 
creed. The law would say to him that his right to wor- 
ship was not to be executed in such a way as to deprive 
his neighbor of his right to life, and would punish him 
accordingly. 

Laws Abridging the Freedom of Speech or of the Press. 
Such laws are forbidden to be made by the United States. 
This does not mean that Congress cannot under any cir- 
cumstances punish for harmful speaking or publication. 
Freedom of speech is not license of speech. It is not the 
privilege of publishing or saying whatever one may see 
fit, but is the privilege to speak whatever does not inter- 



188 Civil Government 

fere with the just and reasonable rights of others. If a 
man is a witness in a Federal court, his freedom of speech 
is so far limited by the law that if he wilfully and de- 
liberately makes false statements in giving his testimony 
he can be sent to the penitentiary for perjury. The law 
against perjury is a reasonable regulation of the right 
of free speech, and not an abridgement of it. 

The Second, the Third, and the Fourth Amendments 
relate to very important matters, but do not seem to need 
explanation. 

The Fifth Amendment groups a great many most ma- 
terial provisions. The first guarantees to every person 
immunity from prosecution and punishment for any seri- 
ous crime unless he has been indicted by a grand jury, 
or "presented" by a proper officer. A grand jury is 
a body of properly qualified men, selected by a court, 
sworn and charged to inquire into all violations of the 
criminal law committed within the district in which the 
court is held, and to make written charges in open court 
against all persons whom they believe to have been guilty 
of crime. Such a written charge properly made out and 
presented by a grand jury to a court is called an Indict- 
ment. This is now the almost universal way of charging 
a person with a serious crime. A Presentment is a writ- 
ten instrument, charging a person with the commission 
of a crime, not made by a grand jury, but by the prose- 
cuting attorney representing the government in the trial 
of criminal cases in the court in which the presentment 
is made. It is made under the official oath of the officer 
filing it, and is based upon an affidavit of some one who 
knows the facts set out in the paper. This is quite a 
common form for prosecuting persons for small offenses; 
but, as stated, serious charges are almost always made 
by indictment. This restriction does not apply to prose- 



The United States of America 189 

cutions or charges for offenses committed by soldiers 
in time of war. They can be dealt with through the 
military officers in a more summary manner. 

Former Jeopardy. To jeopardize is to put in danger. 
This provision against a second jeopardy for the same 
offense prevents one from being tried for an offense after 
he has been once duly charged with it before a court 
having the right to try him and the proceedings have 
gone so far that a jury has been empanneled and the 
accusation has been read and the accused has made his 
plea. These facts as a rule constitute "jeopardy," and 
protect from a second presentation. If, however, after the 
case has reached the stage indicated the accused agrees 
that it should be stopped and withdrawn from the jury, 
or if some fact which the law regards as sufficient excuse 
for stopping the case occurs, such as the adjournment of 
the court for the term before the case is decided, this 
will prevent the rule as to former jeopardy from apply- 
ing. 

Freedom From Compulsory Self-incrimination. A per- 
son cannot be compelled to testify against himself in 
a criminal case in a Federal court, nor can he be com- 
pelled to give evidence in any case, civil or criminal, as 
to any fact which would subject him to criminal punish- 
ment. 

Due Process of Law. This Amendment denies to the 
United States the power to deprive any person of his life, 
liberty or property "without due process of law." This 
has no effect on the States, but in the first section of the 
Fourteenth Amendment the same restriction in the same 
words is imposed on the States. Therefore, a considera- 
tion of the one is necessarily a consideration of the other. 
This is a "Magna Charta" right, and is of inestimable 
value. Volumes have been written on it. But the judges 



190 Civil Government 

and legislatures have declined to attempt to define it. 
In brief, "due process of law" means procedure accord- 
ing to the fundamental principles of right. It includes 
in all cases at least three things: First, the person whose 
right is to be judged of shall be informed of the fact 
that action is to be taken against him. He is entitled to 
this notice in sufficient time to allow him fair opportunity 
to prepare himself for trial. Second, he must be advised 
with reasonable certainty of the nature of the charge 
against him and the reasons given therein for proceeding 
against him. Third, he must have reasonable opportunity 
to be heard in the trial. Being heard includes both the op- 
portunity of presenting testimony and of arguing the law 
and the facts and of the effect of these upon his rights. 
No method of procedure which omits any one of these 
can be due process of law. 

Undelegated Powers Remain in the States and in the 
People. The Ninth and Tenth Amendments taken together 
declare expressly that the United States is a government 
of delegated powers, and that all political power not con- 
ferred upon it, nor denied to the States, remains in the 
States and the people. There are no clauses in the Consti- 
tution indicating more clearly the nature of the Federal 
Government and its relation to the States and the people 
than these. Language could not more clearly express the 
idea that the States preceded the Federal Government and 
formed it ; that in so doing they delegated to the United 
States all those powers and those only which they de- 
sired that Government to have, and that those which are 
not delegated are still in the States and the people. They 
positively contradict and disprove those statements, now 
becoming somewhat frequent, that the States came into 
existence at the same time as the United States, and that 



The United States of America 191 

the United States delegated certain powers to the States, 
and reserved others to itself. 

The language of the Supreme Court in construing the 
Constitution is equally explicit. In Gibbons v. Ogden, de- 
cided in 1824, Chief Justice Marshall, speaking for the 
Court, says: "As preliminary to the very able discus- 
sions of the Constitution which we have heard from the 
bar, and as having some influence on its construction, 
reference has been made to the political situation of the 
States anterior to its formation. It has been said that 
they were sovereign, were completely independent, and 
were connected with each other only by a league. This 
is true. But when these allied sovereigns converted their 
league into a government; when they converted their 
ambassadors deputized to deliberate upon common courses 
and to recommend measures of general utility into a 
legislature empowered to enact laws upon the most in- 
teresting subjects, the whole character in which the 
States appear underwent a change, the extent of which 
must be determined by a fair consideration of the instru- 
ment by which that change was effected. This instru- 
ment contains an enumeration of the powers expressly 
granted by the people to their government. ' ' The lan- 
guage of the Constitution and of such opinions as that 
from which the above quotation was made, and there 
are many of them, positively disprove those statements 
that the States came into existence at the same time as 
the Federal Government and that the United States dele- 
gated certain powers to the States and reserved others 
to itself, and establish the fact that the people of the 
States, and the States as independent sovereignties, ex- 
isted before the Constitution was formed and adopted; 
that in adopting that Constitution the States and the 
people of the States delegated to the United States such 



192 Civil Government 

powers as they saw fit to part with and to confer upon 
it ; that all political power not so delegated to the United 
States remain in the States and the people of the States, 
and that the only proper means of ascertaining what 
powers are delegated on the one hand and reserved on 
the other is by a fair and true construction of the Con- 
stitution. 

Equal Protection of the Laws, The Fourteenth 
Amendment prohibits the States from denying to any- 
one equal protection of its laws. There is no similar re- 
striction on the Federal Government. The effect of this 
provision is to prevent a State from making unjust dis- 
criminations between different individuals or classes; 
that is, discriminations which are purely arbitrary and 
that have no basis in real differences in the persons or 
classes between whom the discriminations are made. The 
State can deal differently with different classes between 
whom real distinctions exist, adapting the law in each 
instance to the actual conditions of the class to be af- 
fected. The language of the Fourteenth Amendment 
should be studied with especial care. Shortly after its 
adoption Congress considered it to be not only a limi- 
tation on the powers of the States, but a positive grant 
of authority to the Federal Government, and hence passed 
the legislation known as "The Civil Rights Acts." In 
those acts it undertook to protect certain classes of citi- 
zens in social rights. The validity of these acts was 
questioned on the ground that the Fourteenth Amend- 
ment was not a grant of power to Congress to legislate 
directly regarding the privileges and rights of citizens, 
but the extent to which it operated was to prevent legis- 
lation by any State adverse to such rights and privi- 
leges. The United States Supreme Court took this view, 
and "The Civil Rights Acts" were held unconstitutional. 



The United States of America 193 

Thus it was decided that Congress cannot regulate civil 
rights by reason of authority derived from this Amend- 
ment. Such regulation is entirely with the States, but 
in doing this the States must observe and act within the 
limitations imposed upon them by this Amendment. The 
words "privileges and immunities" used in this Amend- 
ment are important. They are the same words which 
occur in Clause 1, Section 2, Article IV, of the Consti- 
tution. The effect of these provisions are considered in 
the next chapter, and need not be dwelt on here. 

Thirteenth and Fifteenth Amendments. These Amend- 
ments followed the Civil War, and record one of its many 
consequences, the freeing of the negro. They are limita- 
tions on both the power of the State and Federal Gov- 
ernments. Neither Congress nor a State Legislature can 
pass any act which would validate or legalize slavery. 
Nor can either of them or the people of any State by 
Constitutional provision make any valid law which dis- 
franchises any person because of his race, or color, or pre- 
vious condition of servitude. These Amendments do not 
prevent the States from passing laws fixing qualifica- 
tions for voting on any other grounds than those men- 
tioned in the Amendment, nor is it a valid objection to 
such laws that the qualifications will disfranchise a larger 
proportion of one race or color than of another. So long 
as the real basis of the qualification is other than race, 
color, or servitude it is good. 

For example, if in any community there are two races, 
and a larger proportion of one is educated than of the 
other, it is not unlawful to fix an educational qualifica- 
tion for voting, although it is known that it will ex- 
clude more of the one race than of the other. The same 
is true as to property qualifications, or any other not 
13 



194 Civil Government 

based on race, color, or previous servitude. This is the 
only prohibition in the United States Constitution on the 
power and rights of an individual State to control suf- 
frage within its borders. The second section of the Four- 
teenth Amendment gives to Congress the right to ex- 
clude from the computation in determining the number 
of representatives from a State all adult male persons 
who are disfranchised, unless the disfranchisement is on 
account of crime; but this would not affect the validity 
of the State law by which the disfranchisement was 
accomplished. 

While the Fifteenth Amendment is broad enough to 
include the United States Government, it really is of 
little consequence in that connection, because that Gov- 
ernment has no Constitutional power to fix the qualifica- 
tions of voters. 

RECAPITULATION. 

Restrictive provisions in the Federal Constitution are 
important as protecting the rights of the minority and 
of individuals. 

Such provisions do not apply to the States except when 
so declared. 

The right to the writ of habeas corpus cannot be sus- 
pended by the Federal Government except in case of 
actual rebellion or invasion, and then only when neces- 
sary to the public safety. 

Neither Congress nor a State Government can pass 
bills of attainder or ex post facto laws. 

Congress can pass laws impairing the obligation of con- 
tracts, but the States cannot. 

Congress cannot establish a religion or prohibit the 
free exercise of one's religious opinions. It may prevent 
invasion of the rights of others done under the guise of 



The United States of America 195 

religious worship, if the right protected is within the 
jurisdiction of the Federal Government. 

Congress cannot abridge freedom of speech or of the 
press. This guarantees liberty, but not license, in the 
expression of ideas. 

No one can be tried on a serious criminal charge in 
a Federal court except upon indictment by a grand jury, 
or upon presentment by a prosecuting officer. 

No one can be tried for an offense in a Federal court 
after he has been acquitted, or convicted and punished, 
or put in jeopardy therefor. 

No one can be compelled in a Federal court to give 
evidence which tends to convict him of a criminal of- 
fense. 

Neither the Federal nor a State Government can de- 
prive anyone of life, liberty, or property except by due 
process of law. Due process of law includes informa- 
tion as to the charge made against one, and the oppor- 
tunity to defend one's rights. 

A State Government cannot deny to anyone equal pro- 
tection of the law. This prevents unfair class legislation. 

The United States is a government of delegated pow- 
ers, and all powers not delegated to it remain in the 
States and the people. 

No one can be denied the right to vote by either the 
Federal or a State Government on account of race, color, 
or previous condition of servitude. 

Slavery is forbidden within the United States. 

The Fourteenth Amendment is not a grant of power 
to Congress, but a restriction upon the States. 

QUESTIONS. 
I. 1. What is meant by restrictive provisions in a constitu- 
tion, and what is their purpose? 2. Enumerate the provisions 
in the Constitution of the United States, which deny power to 



196 Civil Government 

the Federal Government alone. To the States alone. To both 
Governments. 3. When do restrictions in the Constitution of the 
United States apply to the States? 

II. 1. What is the purpose of the writ of habeas corpus? 
2. When may the right to such writ be suspended by the Federal 
Government ? 

III. 1. What is a bill of attainder ? 2. What are ex post facto 
laws ? 

IV. 1. What is a law impairing the obligation of a contract? 
2. Which Government is forbidden to pass such laws? 

V. 1. What prohibitions exist in the Federal Constitution 
against the violation of religious rights? 2. What is meant by 
abridging freedom of speech and of the press? 

VI. 1. What is the general meaning and effect of the Ninth 
and Tenth Amendments? 2. What kind of legislation by the 
States is forbidden by the Fourteenth Amendment? 3. Is this 
Amendment a grant of power to Congress, or a. limitation on the 
powers of the States only? 

VII. 1. Can Congress pass a law legalizing slavery? Give 
reasons. 2. What is the only restriction in the Federal Consti- 
tution on a State's right to disfranchise voters? 3. On what ac- 
count can Congress reduce the representation of a State in Con- 
gress ? 



CHAPTER XVII. 

GUARANTEES IN THE FEDERAL CONSTITUTION 

TO THE STATES, AND TO THE CITIZENS OF 

THE STATES AND OF THE UNITED STATES. 

General. The limitatioDS on the Federal Government 
which were discussed in the preceding chapters are really 
guarantees both to the States and to their citizens; and 
the limitations on the State and on the Federal Gov- 
ernments are also guarantees to the citizens of the States. 
These limitations must always be kept in mind. 

In addition to these there are a number of direct and 



The United States of America 197 

positive guarantees in the Constitution which are worthy 
of separate consideration. 

Guarantees to the States. "The United States shall 
guarantee to every State in this Union a republican form 
of government, and shall protect each of them against 
invasion, and on application of the Legislature, or of the 
Executive (when the Legislature cannot be convened), 
against domestic violence. " Article IV, Section 4, Con- 
stitution of United States. 

"No tax or duty shall be laid on articles exported from 
any State." 

"No preference shall be given by any regulation of 
commerce or revenue to the ports of one State over those 
of another; nor shall vessels bound to or from one State 
be obliged to enter, clear, or pay duties in another." 
Article 1, Section 9, Clauses 5 and 6, Constitution of 
the United States. 

The most emphatic guarantees by the National Govern- 
ment to the States are found in the fourth section of 
Article IV of the Constitution as quoted above. First, it 
promises a republican form of government; second, pro- 
tection from invasion; third, protection from domestic 
violence, when it is requested by the Legislature of the 
State, or by the Governor when the Legislature cannot 
be convened. 

Republican Form of Government. The States had been 
republican from their foundation. The colonists had be- 
come fully satisfied that monarchical government was 
not desirable. Accordingly in entering into the Union 
and parting with so many of their sovereign powers they 
received the guarantee that they should each retain a 
republican form of government. 

Doubtless this means that each State should forever 



198 Civil Government 

be protected in its choice of a representative democratic 
government; a government wherein sovereignty over the 
political matters not given over to the United States 
should remain in the people of the States, and should be 
exercised by them directly in organizing their State Gov- 
ernment, and in the election of their principal officers, 
but indirectly through their chosen representatives in 
ordinary governmental affairs. It may be that it goes 
further and includes a substantial separation of the State 
Governments into the three great departments: Legis- 
lative, Executive, and Judicial. This, however, is not 
clear. There has been but little occasion to construe 
this guarantee, and its meaning has not been authorita- 
tively determined. 

Guarantee Against Invasion. The States in forming 
the Union surrendered their right to enter into treaties 
or compact with each other or with foreign nations, or 
to keep standing armies, or to engage in war on their 
own initiative, except in case of actual invasion, or such 
imminent danger as would not admit of delay. It was 
but natural and just that the government to which they 
had given over these powers should pledge itself to use 
them in their protection in case of need. Invasion is 
the actual entry upon the territory of a state by per- 
sons bearing arms for a foreign government in a hostile 
manner, or for a hostile purpose. Every entry by per- 
sons acting and representing a foreign government is 
prima facie hostile, and hence all such entries are for- 
bidden under the law of nations. The States have the 
right to repel any such invasion on their own account, 
and are not under obligation to first call upon the Fed- 
eral Government. It may be well frequently to do so, 
although direct initiative by the State in such cases would 
not violate the Constitution. 



The United States of America 199 

Even though there be no actual invasion, if any for- 
eign nation is committing a hostile act which puts the 
State "in such imminent danger as will not admit of 
delay," the State may protect itself. 

In every case of action by the State under either of 
the contingencies mentioned it should immediately com- 
municate with the officers of the Federal Government, 
and the conduct of the war should be given over to it 
at the earliest practicable time. 

Guarantees of Aid in Case of Domestic Violence. As 
the States retained control of their domestic affairs, and 
of the means which enable them to control such matters 
under ordinary conditions, it was not necessary to ob- 
tain from the Federal Government an unqualified guar- 
antee of domestic tranquility. The States, however, did 
give up many of the sources of revenue which they had 
possessed as unitary states, and also the right to main- 
tain standing armies. The loss of these powers neces- 
sarily weakens the States to some extent, even in deal- 
ing with internal disturbances. It was, therefore, well 
to make provision for aid from the Federal Government 
in case it should become desirable. But to give to the 
Federal Government the right on its own suggestion to 
take part in the domestic affairs of a State might be 
made a pretext, or at least afford the opportunity, for 
unnecessary interference. Hence we find that the right 
and duty to protect the State in this class of cases is not 
an absolute one, as in the two preceding, but arises only 
when called for by the proper State officers. The power 
to apply for such aid in behalf of the State is given 
primarily to the Legislature, because it is the authority 
most directly representative of the people, and is most 
likely to reflect the desire and sentiment of the majority; 



200 Civil Government 

but if the Legislature cannot be convened, the Governor 
may make the application. 

Guarantee Against Export Taxes. The States surren- 
der their power to levy taxes of any kind on foreign com- 
merce, except by consent of Congress. They retained 
the power to collect such taxes from foreign vessels as 
are necessary to defray the expense of executing the 
inspection laws, but this cannot be regarded as a power 
to tax for purposes of revenue. In return they received 
from the Federal Government the guarantee that "no 
tax or duty shall be laid on articles exported from any 
State. " This clause and the limitations on the States' 
power to tax contained in Section 10 of the same Article 
relieve all persons shipping commodities from the United 
States from all export duties. 

"Guarantees as to Regulating Commerce and Revenue. 
By the sixth clause of Section 9, Article I of the Con- 
stitution, the United States Government is forbidden to 
give any preference to the ports of one State over those 
of another, or to levy any charges on the coast-wise 
trade. These provisions are practical guarantees against 
any discrimination between the States by the Federal 
Government in the exercise of the powers given it over 
international and interstate commerce. This is a wise 
and just precaution which commends itself to all. 

Relations of the States to Each Other — Public Rec- 
ords. "Full faith and credit shall be given in each State 
to the public acts, records, and judicial proceedings of 
every other State. And the Congress may by general 
laws prescribe the manner in which such acts, records, 
and proceedings shall be proved, and the effect thereof." 
Article IV, Section 1, Constitution of the United States. 

This clause secures to each State and its citizens the 
right to rely upon and get the benefit of "the public 



The United States of America 201 

acts, records, and judicial proceedings of every other 
State. " It does not require the officers of one State to 
take official notice of the acts and proceedings of other 
States, as they are required in some instances to do with 
regard to those of their own State. But it does entitle 
those who are interested in such matters to make proper 
proof of them before the officers of other States, and 
compels such officers to give to them due credit and 
effect when proved. 

To entitle such "acts, records, and judicial proceed- 
ings " to recognition they must be really public; that is, 
acts performed, records made and kept, or proceedings 
had in courts having competent jurisdiction. Hence, 
before a person can receive any practical benefit from 
this provision he must prove the public and official na- 
ture of the action on which he relies. 

Extradition of Criminals. "A person charged in any 
State with treason, felony, or other crime, who shall flee 
from justice and be found in another State shall, on de- 
mand of the Executive authority of the State from which 
he fled, be delivered up to be removed to the State having 
jurisdiction of the crime.' ' Article IV, Section 2, Clause 
2. 

The purpose of this clause is to prevent fugitives from 
justice from one State from finding asylums of safety 
in another. The process is indicated in the provision it- 
self. It is called extradition. The first requirement to 
entitle the Governor of one State to extradite a person 
from another is that such person be charged with trea- 
son, felony, or other crime. The charge must be made in 
some way recognized as "due process of law," usually 
by indictment of a grand jury, though this is not neces- 
sary. The accusation must be of a criminal nature. The 
only offense named is "treason," but any act which is 



202 Civil Government 

a violation of a criminal law is included. Trivial mis- 
demeanors are not usually made the subject of extradi- 
tion. "The party must flee from justice and be found in 
another State. ' ' Usually the crime for which extradition 
is sought is committed within the territory of the State 
whose Governor makes the application, and the person 
sought has left that State to avoid arrest. In such case 
he has fled, not only from justice, but from the State as 
well, and there is no difficulty in declaring such an one a 
fugitive from justice. If he committed a crime within 
a State and has subsequently left it, though not for the 
purpose of escaping punishment, he is still held to have 
fled. 

There are a few crimes which can be committed against 
the laws of one State by a person within the territory of 
another. For example, a man in Missouri forges a deed 
to land in Texas. The act of forgery is the crime, but 
the land the title to which is affected is in Texas. Texas 
has power to protect the title to lands within her bor- 
ders. To do this she makes forging titles to such lands 
a crime, no matter w^here committed. The man in Mis- 
souri has committed a crime against Texas law, and is 
indicted for it in Texas. If he can be found in Texas he 
can be tried and punished, but he is not held to have fled 
from justice and cannot be extradited. 

The purpose of this clause is to enable the Governor 
of a State, against whose laws a crime has been com- 
mitted by one within the State but who is out of the 
State at the time he is sought for arrest, to bring the 
person back into the State to be tried. 

The Governor of the State where the accusation is 
pending makes application to the Governor of the State 
where the accused is, requesting the arrest and surrender 
of the accused to a representative of the State making the 



The United States of America 203 

application. This application is called a requisition. While 
the language of the Constitution seems imperative, still 
the Governor upon whom the requisition is made must 
decide whether the conditions exist which make the pro- 
visions applicable. Ordinarily requisitions are granted, 
if they are in due form, and accompanied by the proper 
proof of the facts; but they may be denied. This is fre- 
quently done when the Governor thinks that the return 
of the accused is not sought in the interests of justice 
and law. If the requisition is honored, the accused is 
surrendered to the representative of the State seeking 
him, and is carried back for trial. 

Guarantees as to New States. "1. New States may 
be admitted by the Congress into this Union; but no new 
State shall be formed or erected within the jurisdiction 
of any other State ; nor any State be formed by the junc- 
tion of two or more States or parts of States, without 
the consent of the Legislatures of the States concerned, 
as well as the Congress." Article IV, Section 3, Con- 
stitution of the United States. 

This does not seem to need exposition, but is quite 
important. 

Privileges and Immunities of Citizens Within Other 
States. "The citizens of each State shall be entitled to 
all privileges and immunities of citizens in the several 
States." Article IV, Section 2, Clause 1, Constitution 
of the United States. 

Section 1 of the Fourteenth Amendment among other 
things provides that "No State shall make or enforce 
any law which shall abridge the privileges or immunities 
of citizens of the United States." These clauses should 
be construed together. The first is an affirmative guaran- 
tee to citizens of the several States against abridgment 
by either the Federal or State Governments of privileges 



204 Civil Government 

or immunities to which they are entitled as such citizens. 
The second is a limitation on State action only, and 
is for the benefit of citizens of the United States, as 
such. These differences must be kept in mind. 

The words "privileges" and "immunities" have the 
same meaning in the two clauses. They signify rights to 
life, liberty, and property, and to the equal protection of 
the laws ; but they do not include political rights, such as 
voting, or holding office. As every citizen of a State is 
necessarily a citizen of the United States, both clauses 
apply to and protect all such citizens. There are citizens 
of the United States who are not citizens of any State, 
as residents in the District of Columbia, or in a Terri- 
tory. These are protected by the latter clause, but not 
by the former. 

Corporations are not citizens, either of the United 
States or of a State, within the meaning of these clauses, 
and hence can claim no protection under them. 

RECAPITULATION. 

The United States gives to each State the following 
guarantees: A republican form of government, protec- 
tion from invasion, and, on proper application, from in- 
surrection, against export taxes, against discrimination in 
regulation of commerce, or charges on coast-wise trade. 

Each State is guaranteed that its public records shall 
have full faith and credit in every other State. 

The Constitution provides for the extradition of crim- 
inals from one State to another. 

New States may be formed, but no new State shall 
be created within an old one, nor two old ones combined 
without the consent of the States to be affected. 

Every citizen of each State is entitled to all the "priv- 



The United States of America 205 

ileges and immunities ' ' in every other State that the 
citizens of the latter State enjoy. 

No State can pass or enforce any law which abridges 
the privileges of citizens of the United States. 

"Privileges and immunities, ' ' as used in the two pre- 
ceding statements, do not include political rights or priv- 
ileges. 

Corporations are not citizens either of the States or of 
the United States, within the preceding statements. 

QUESTIONS. 

I. 1. What direct guarantees are given in the Federal Con- 
stitution to the States? 2. What to citizens? 

II. 1. Why is the promise of a Republican form of govern- 
ment so important? 

III. 1. Has a State the right to protect itself from invasion, 
and what part should the Federal Government take in such pro- 
tection ? 

IV. 1. The loss of what powers by the States made it neces- 
sary for the Federal Government to guarantee to them aid in 
case of domestic violence? 

V. 1. By whom is such application for aid made? 

VI. 1. Explain the guarantee against export taxes, and those 
regulating commerce and revenues. 

VII. 1. Explain the importance of the guarantee concerning 
the public records. 

VIII. 1. What is extradition? 2. Explain the process em- 
ployed in it, and its importance. 3. Under what condition is a 
man said to have fled from a State and from justice? 

IX. 1. Explain the guarantee given as to new States. 

X. 1. What privileges and immunities has a citizen of one 
State within another, under Clause 1, Section 2, Article IV, of the 
Constitution? 2. Can citizens of the United States who are not 
citizens of any separate State claim this guarantee? 3. Does this 
guarantee and that in the Fourteenth Amendment apply to cor- 
porations ? 



206 Civil Government 

THOUGHT QUESTIONS FOR REVIEW. 

1. What is meant by the States being unitary states before 
the adoption of the Constitution of the United States. 

2. What is meant by the United States being a Federal State? 

3. How are the powers which the States surrendered to the 
United States ascertained ? 

4. Why may every case involving a Federal question be car- 
ried to the Supreme Court of the United States for decision? 

5. Why is it necessary for every government to have a legis- 
lative department? 

6. Why does each State have the same number of Senators but 
a different number of Representatives? 

7. Give the general characteristics of the powers of the United 
States. 

8. Under what circumstances are implied powers recognized 
as existing in the United States? 

9. How is the President elected? How is it that the candidate 
for President who has the smaller popular vote may still be legally 
elected by the votes of the electoral college? 

10. How can the creation and maintenance of the President's 
Cabinet be justified under the Constitution? 

11. Why was the President given the power to pardon, and 
what should govern him in its exercise? 

12. Why is it necessary to have Federal courts? Why were 
Circuit Courts of Appeals created by Congress? 

13. What is the purpose of placing restrictive provisions in 
the Federal Constitution? Why are such provisions not applicable 
to the States unless this is expressly so stated? Why is it de- 
sirable to place some restrictions on the States in the Federal 
Constitution ? 

14. Why does the Constitution give an absolute guaranty to 
the States as to invasion, and only a conditional one as to domestic 
violence? 

15. Why are the powers of the Legislative and Executive De- 
partments of the Federal and of the State Governments in a 
great degree exclusive of each other, while a large share of the 
Judicial powers of the two Governments are concurrent? 



PART FOUR 

GOVERNMENT OF THE STATES, WITH 

PARTICULAR REFERENCE 

TO TEXAS. 

CHAPTER XVIII. 

THE STATE GOVERNMENTS. 

Brief Resume. We have found that each of the thir- 
teen States which formed the United States of America 
began its political existence as a separate colony, planted 
by English subjects under the protection of the British 
Crown, and owing to that Crown political allegiance. 
There was no organized connection between these. Each 
was politically distinct from every other. There existed 
between them, however, the ties of common race and 
social conditions, of common tradition and religion, and, 
perhaps more powerful than all of these, of common 
difficulties and dangers. When planted here they were 
dependent largely upon the Mother Country for sup- 
plies, and for protection from the Indians and from 
European nations. As they increased in population and 
developed their resources they became more independent. 
The Mother Country had been at considerable expense in 
founding these colonies, and it was but natural that as 
they grew she should seek to reimburse herself for her 
expenditures, and thus prove the value of the colonies 
as sources of revenue. It was natural also that the King's 
Parliament should not draw very sharply the line between 
just return and additional financial contribution, and 
since England was practically impartial in its treatment 
of the colonies, in its exactions from them, and in the 



208 Civil Government 

manner of their enforcement, the grievances and dangers 
of one colony were the grievances and dangers of all. 

For this reason the separate colonies united in declar- 
ing their independence of Great Britain, and in main- 
taining such independence on the battlefield. They were 
successful in their common enterprise, and the rebellion 
of the colonies was by that success changed into the Revo- 
lution of the States. They then united in the Confedera- 
tion, each still retaining its sovereignty unimpaired, and 
later entered into the Federal State which still continues 
as The United States of America. 

Admission of New States. The Federal Constitution 
provides for the admission of new States. Under this 
power thirty-three States have been received, thus in- 
creasing the number to forty-six. Thirty-one of these 
came into the Union by the establishment of Territorial 
Governments by Congress, and by the subsequent change 
of these by the people into States with the approval and 
concurrence of the Federal Government. One, West Vir- 
ginia, was created by Congress out of a portion of the do- 
main of Virginia, with the co-operation of the inhabi- 
tants of the new State, but without the consent of Vir- 
ginia. Another, Texas, came in by annexation, effected 
by treaty between the United States and the Republic of 
Texas. 

Status of New States. We have also found that as each 
State is admitted into the Union it takes the same po- 
litical position as each of the other States, so that its 
powers, rights, duties, and status are identical with those 
of the older ones. 

Jurisdiction of the States. The Federal Constitution 
grants to the United States Government control over all in- 
ternational and interstate matters, and over many other 
matters of such nature as to make uniformity of rule es- 



Government of the States 209 

sential to the general well-being of the people of the whole 
Union. All purely local and domestic matters are left 
to the States, and these are of the greatest possible con- 
cern and importance. The protection of the life, liberty 
and property of the citizen is very largely in the hands 
of the States. If a man is murdered, the murderer is tried 
and punished by the State. If he is wrongfully put in 
prison, in almost all instances he must apply to the 
State authorities for release. If his property is taken 
or injured, he must, except in a very few cases, look 
to the State courts for redress. There are circumstances 
under which the Federal Government has jurisdiction 
over cases of each of the kinds mentioned, but these are 
rare. Therefore, important as the Federal Government 
is, and beneficial as its action may be within its juris- 
diction, it is far from constituting the whole of our Gov- 
ernmental institutions. The Government of the United 
States and that of the separate States mutually support 
and supplement one another. Each without the other 
would lack efficiency. Taken together they possess and 
exercise all the functions of a unitary state, and con- 
stitute the best form of government which the world 
has ever known. 

Political Subdivisions of a State. As each State has 
control over all of its domestic affairs it owes the duty of 
providing means and agencies for local government. It 
would be extremely inconvenient to have all the courts 
for the trial of cases in a State held at one place. The 
hardships upon parties to suits, and on witnesses and 
jurors, would be intolerable. It would be equally in- 
convenient to have all the public records kept, and all 
taxes assessed and paid, at one place. This is equally 
true of a great many other matters. Again, it is the 
duty of the Government to make and maintain good high- 
14 



210 Civil Government 

ways over which the people can go and come as their 
business and pleasure may demand. If, however, all 
public highways were absolutely under the control of 
one State officer, there might be great discrimination and 
injustice. To obviate these difficulties the State divides 
its territory into convenient subdivisions, conferring upon 
each such powers as the interests of the particular lo- 
cality may require, so far as this can be done without 
interference with the general good of the whole State. 
The State gives to these subdivisions such names as it 
sees fit, makes such provision as to the exercise of the 
powers conferred, and charges it with such duties as 
the general good requires. 

Counties. In the great majority of the States the most 
important of these subdivisions are called Counties. In 
Louisiana they are Parishes. The name County is of 
English origin, and indicates the territory assigned to 
a count. In England it was usually composed of smaller 
subdivisions known as Towns and Hundreds. It is cus- 
tomary in the United States to divide Counties into lesser 
districts, having different names in different States. 

The County is a very important factor in our form of 
government. It is a subdivision made largely for con- 
venience in the administration of State affairs and in 
enforcing State laws. It has but little political power 
conferred upon it for its own benefit. 

In each County there is established a County-Seat, 
where courts are held, public records kept, and where 
all county officers have their offices. To these county 
officers all matters pertaining only to their particular 
community, and all such State matters as are capable 
of subdivision and effective local control, are given over. 
The laws which govern all the county activities are 
State laws. The courts administer the laws of the State 



Government of the States 211 

and of the United States. The records are kept by au- 
thority of and in conformity to State laws. The public 
roads are laid out and worked as the State laws direct. 
The same is true of the whole catalogue of affairs at- 
tended to through county officers. 

Organization of Counties. Counties are created by or 
under Legislative authority. No community can with- 
out such authority organize itself into or assume func- 
tions belonging to a county. The usual method employed 
in organizing counties is for the Legislature to divide 
the territory of the 'State into convenient districts with 
well defined boundaries. The inhabitants within each 
select a county-seat, elect proper county officers, and re- 
port these facts to a designated representative of the 
State. When such organization is recognized by the 
officers acting for the State the county enters upon its 
life as such. 

County Officers. In each county there are a number 
of officers elected whose duties are mainly executive and 
judicial. The usual county officers and their duties are 
as follows: A County Judge, who presides over the 
Tax Assessor, who assesses taxes on persons and prop- 
bate matters. A Sheriff, who is the chief executive of- 
ficer, and who keeps peace in the county and carries 
out the orders of the Governor and of the courts. A 
Tax Assessor, who assesses all taxes on persons and prop- 
erty within the county for both State and county pur- 
poses. A Tax Collector, who collects the taxes for the 
State and county, and pays the money to the proper re- 
ceiving officer of each. A County Treasurer, who re- 
ceives, cares for and pays out the county money. A 
County Clerk, who keeps the records of the county courts 
and those which relate to lands and other property, births 
and marriages, etc. A School Superintendent, who has 



212 Civil Government 

general charge over the public schools of the county, and 
a County Surveyor, who surveys public lands and pub- 
lic roads, etc. These are the officers usually provided 
for by law, but the people, either in their Constitution 
or through the Legislature, can add such others or leave 
off such of these as they see fit. 

Political Districts. It is necessary for some purposes, 
principally for the election of different kinds of officers, 
to have State political subdivisions larger than coun- 
ties. These are formed by combining as many contigu- 
ous counties as may be necessary to make a required 
size. These combinations are made for the election of 
legislative or judicial officers. To illustrate: A State 
will have a great many more counties than it has mem- 
bers of either branch of the Legislature. It determines 
how many inhabitants are entitled collectively to one 
Representative, and puts into one Representative Dis- 
trict a sufficient number of contiguous counties to make 
this required number. If a single county should have 
many more inhabitants than entitle it to one Representa- 
tive, it is given two or more, as the case may be. The 
same is true in the election of State Senators, and Rep- 
resentatives in Congress, and of certain judicial officers. 

Subdivisions of Counties. In most of the States the 
county precedes its subdivisions; that is, the county is 
created, and then divided by the county officers into 
the number of precincts for which the law provides. 
These precincts are the smallest of the political sub- 
divisions of a State, and are made for different pur- 
poses. N 

Justices Precincts. Each county is divided into sev- 
eral precincts, known usually as Justices Precincts, in 
each of which a trial court for small cases is maintained. 
The presiding officer of these courts is a Justice of the 



Government of the States 213 

Peace, and the executive officer is called a Constable. 
These courts are a great convenience to the people, as 
they afford convenient, inexpensive and reasonably speedy 
means for settling the lesser disputes which arise in a 
neighborhood. 

Voting Precincts. The number and size of the Voting 
Precincts in each county are usually left to the discre- 
tion of the County Board, or Commissioners Court, as 
that body is sometimes called. In each of these a poll- 
ing or voting place is established where the inhabitants 
of the precinct, who are legally qualified, east their votes. 
It is within these precincts that the primary elections, 
or precinct conventions of political parties, are held. 

Towns or Townships. In some of the Northern and 
Eastern States the county is not the most important sub- 
division of the State. Into these States the English 
Town or Township was transplanted and its character- 
istics emphasized. It is the best illustration of local 
self-government which the United States furnishes. In 
it all strictly local matters are attended to in the Town 
meeting by the voters themselves. In this meeting every 
voter in the Town has an equal voice and an equal vote. 
Here they determine for themselves the local taxes, pro- 
vide for the laying out and keeping up of the Town 
roads, and for all similar local matters. The voters meet 
once a year for these purposes; and at such meetings 
the different Town officers are elected, who carry on the 
township affairs until the next annual meeting selects 
their successors. Boston maintained its township gov- 
ernment until 1822, when it changed to the city form 
of government. Before this change was made the Town 
had over 40,000 inhabitants. Brookline, one of the sub- 
urban towns adjoining Boston, still maintains this an- 
cient form of government, and refuses to be incorporated 



214 Civil Government 

as a city, even though it counts its inhabitants by 
thousands, and is the richest community per capita in 
the United States. In those States in which the town- 
ship exists counties are formed by combining townships, 
but they are not so important as in the States formerly 
considered. 

Cities and Towns. The word "town" has here a mean- 
ing different from that in the case of New England towns 
or townships. Experience demonstrates that, for both 
business and social purposes, people will congregate in 
large numbers within small spaces. This massing of popu- 
lation creates the necessity for better and special means 
of protecting private rights and supplying public needs. 
Better highways, better sanitation and better protec- 
tion against fire and against crime, larger and better 
facilities for water and light and transportation, and 
many other matters equally important and yet local in 
their nature, require additional organization of the com- 
munity in which these needs exist. Such organization 
is secured by the incorporation of these thickly-settled 
districts into new political units, known as Cities or 
Towns. These corporations, while public and govern- 
mental, are still more for local than for general pur- 
poses ; and tend more to the special convenience, advan- 
tage and protection of the inhabitants of the designated 
territory than of those of the State at large; and the 
powers conferred and duties and liabilities imposed are 
made to correspond to these conditions. As a rule, 
only a small share of the general powers of government 
are included in those granted ; those which are so granted 
being for local benefit. 

Methods of Chartering Cities and Towns. There are 
two general methods of creating such corporations: 
first, by the passage of general laws providing for their 



Government of the States 215 

creation, specifying how the corporation shall be effected, 
the powers to be possessed by it and the duties and lia- 
bilities to which it is subject, and authorizing the inhabi- 
tants of any district or locality having the legal require- 
ments set out in the act to combine themselves into such 
corporation. The second method is by direct or special 
act of the Legislature creating the particular town or 
eity. 

Powers and Duties. In whichever way any town or 
city is created it has such powers and is subject to 
such responsibilities as its creative act or charter, whether 
general or special, interpreted and construed according 
to legal rules, shall specify. The scheme of government 
for such corporations is local. The officers consist of 
a chief executive, known as a Mayor; of taxing officers; 
of officers charged with the duty of keeping public rec- 
ords; of others charged with the duty of keeping public 
funds; of a city board, known as Councilmen or Alder- 
men; of officers having local judicial authority; and of 
police officers and commissioners for various purposes, 
whose duties usually relate to some public utility. The 
legislative power of the corporation, so far as it is in- 
vested with such power, is conferred upon its Board of 
Aldermen, or Council. Their legislative acts are local, 
and are supplementary to the general laws of the State. 
The judicial officers of the city are usually restricted in 
their jurisdiction to the enforcement of city ordinances 
and State laws against petty misdemeanors. The selec- 
tion of the several officers is usually entrusted to the peo- 
ple of the city directly by election, or indirectly by 
appointment by the elective officers. Whether or not 
this right of local self-government may be regulated, 
modified, or taken away by the Legislature of the State, 
either in original acts of incorporation or in amendments 



216 Civil Government 

to charters, and, if so, in what way and to what ex- 
tent, are interesting and unsettled questions. The courts 
of different States have differed with regard to them. 
In Texas the question has recently been raised as to 
the power of the Legislature to authorize the Governor 
to appoint Commissioners to exercise many of the most 
important powers of the government of the City of Gal- 
veston. Our two courts of last resort have come to 
directly opposite conclusions on the subject; the Court 
of Criminal Appeals holding that criminal ordinances 
passed by such Commissioners or by a Board or Council 
of which they were members, are void, and the Supreme 
Court holding that civil ordinances, or action taken in 
civil matters, by the same Board with the same constitu- 
ents, are valid. 

Taxation. A State has the power to tax every person 
or thing subject to its jurisdiction, unless it is prohibited 
from doing so by the Federal Constitution. 

That instrument, as we have seen, forbids the States 
to lay imposts on imports or exports for revenue pur- 
poses, or to lay any duty on tonnage. The States cannot 
tax the agencies through which the Federal Government 
is performing its duties, nor can they tax interstate com- 
merce, as neither of these is within the State's jurisdic- 
tion. However, it can tax property within its territory 
used in such commerce. The application of these doc- 
trines is often hard to make, but the doctrines them- 
selves are well established. 

Eminent Domain. The State has the power of emi- 
nent domain, and can exercise it for its own benefit, for 
the benefit of its political subdivisions, or for that of 
persons or corporations engaged in public enterprises, 
such as operating railroads, waterworks, telegraph or 
telephones, and similar public utilities. 



Government of the States 217 

Police Power, Each State retains its police power in 
full force as to internal affairs. Under this it has au- 
thority to take such action as may be necessary to pro- 
tect its inhabitants in their health, morals, or safety. 
A very interesting case involving the nature and exer- 
cise of this power occurred some years ago in Missis- 
sippi. The Legislature for a certain sum of money paid 
to the State, and for a share in the proceeds of the en- 
terprize, chartered a Lottery Company. The Company 
organized, made the cash payment, and began operations. 
For some years it continued, taking in large sums an- 
nually, and paying over to the State its share. Later the 
people of Mississippi concluded that lotteries were im- 
moral, and had the law chartering this one repealed. 
The Company resisted the repeal on the ground that its 
charter was a contract, and that the State was forbid- 
den to take any action impairing the obligation of con- 
tracts. The trial court upheld the repealing act, on the 
ground that a lottery is immoral, and that a State can- 
not by agreement deprive itself of the power to forbid 
it in the protection of the morals of the people. The 
Supreme Court of the United States affirmed this de- 
cision. In other words, the Supreme Court of the United 
States holds that the police power of the State is a 
solemn trust which cannot be bargained away by a 
Legislature in such way that that Legislature or any 
of its successors cannot recall and exercise it; and, as 
the morals of the people are injured by a lottery, the 
latter cannot be protected by contract with the State. 

RECAPITULATION. 

The Federal Constitution provides for the admission 
of new States into the Union. 

Under this thirty-three States have been admitted: 



218 Civil Government 

thirty-one were first Territories, and one, West Virginia, 
was created out of territory formerly belonging to Vir- 
ginia. Texas was annexed. 

New States take and retain status identical with that 
of the original States. 

The respective States have jurisdiction over all local 
and domestic matters, and by their sovereignty protect 
the larger share of the rights of individuals. 

The Federal and State Governments are supplemen- 
tary; neither is adequate for complete government. 

The State is the political unit in our American Gov- 
ernmental institutions. The United States are formed 
by their Union. The various smaller political districts 
are formed by their subdivision. 

Each State makes such subdivisions of its territory 
and confers upon each such parts and so much of its 
political power as it sees fit. 

The most frequent and important subdivision of a 
State is a county. Counties are formed for convenience 
in enforcing State laws by localizing the exercise of 
the State's executive and judicial powers. Counties have 
practically no legislative powers. There are numerous 
officers selected from the citizens of each county to exer- 
cise these powers. They are usually a county judge, a 
sheriff, a clerk, a tax assessor, a tax collector, a treas- 
urer, a school superintendent, and a county surveyor. 

Political districts for electing officers are frequently 
formed by combining several counties. 

Counties are again subdivided into precincts for va- 
rious purposes connected with the Government. 

The justice's precinct is the smallest subdivision of 
the State for judicial purposes. A justice's court is 
maintained in each such precinct. Voting precincts are 



Government of the States 219 

also made. All qualified voters within the same voting 
precinct vote at the same place. 

In the New England States the primary political sub- 
division of the State is into townships or towns, as they 
are frequently called. These are then combined into 
counties. These townships are fine representatives of 
local self-government by direct action of the people. 
Police powers and methods of procedure are subject to 
the control of the State. 

The growth of a community and the increase of its 
population renders necessary additional local govern- 
mental activities. These are provided by incorporating 
cities and towns, and giving to them so much local au- 
thority as the circumstances make desirable. 

There are two ways of incorporating cities and towns. 
One is by a special act of the Legislature creating a city 
or town; the other is by passing a general law giving 
directions as to the manner in which the inhabitants of 
thickly settled communities may organize into an in- 
corporation, and specifying the authority and duty of 
such corporation after organization. 

City officers are usually a mayor, who is the chief exec- 
utive, a board of aldermen, or city council, to whom most 
of the powers of the city are entrusted, policemen, an 
assessor and collector of taxes, a city clerk, a city en- 
gineer, and various commissioners and boards. 

A State has power to levy taxes of all kinds, and in 
any way not prohibited by the Federal Constitution, 
expressly as in case of imports, or impliedly as in case 
of agencies of the Federal Government. 

A State has the power of eminent domain. 

The police power of a State is its authority to protect 
the "health, morals, and safety of the people. " This is 



220 Civil Government 

one of the high prerogatives of sovereignty, and cannot 
be parted with by contract. 

QUESTIONS. 

I. 1. Give short review of the relations between the United 
States and the original States. 2. Under what authority does 
the United States admit new States? 3. By what process was 
Texas admitted? How was West Virginia created? 4. What is 
the status of new States coming into the Union? 

II. 1. Why is it necessary to subdivide the States? 2. What 
is the most important of the political subdivisions of the States 
generally called? For whose convenience is it made? 3. Name 
the principal county officers, and give the duties of each. 

III. 1. What are justices precincts? What officers are elected 
in them? What are their respective duties? 2. What is a vot- 
ing precinct? Why are they established? 3. Compare New Eng- 
land townships with counties and their subdivisions. 

IV. 1. What is a city? What is a town? 2. Why are cities 
and towns organized? 3. What are the two methods of incor- 
porating cities and towns? Explain each method. 4. How can the 
powers of a city be ascertained? 5. Name the usual city officers 
and state their respective duties. 

V. 1. What is taxation? 2. What may be taxed hj the 
States? 3. What matters are outside the States' power to tax? 

VI. 1. What is the power of eminent domain? 2. For what 
purpose may it be exercised? 

VII. 1. What is the police power of the State? 2. Why can- 
not a Legislature bind itself or a succeeding Legislature by an 
agreement not to exercise this power? 



CHAPTER XIX. 

BRIEF HISTORICAL SKETCH OF TEXAS. 

Early Claims. The territory now included within the 
State of Texas was, in its early history, the subject of 
much controversy between Spain and France. Spain 
had undisputed claim to Mexico, and France to Louisi- 



Government of the States 221 

ana, but the boundary between these two could not be 
ascertained. It might be anywhere from the Mississippi 
on the Bast to the Rio Grande on the West, "as chance 
or fate determined. " 

In 1762 France ceded all of Louisiana west of the 
Mississippi to Spain. In 1800 Spain ceded Louisiana 
back to France, and in 1803 France sold it to the United 
States. Upon this purchase the boundary between the 
territory of Spain and that of the United States became 
a matter of real consequence. The Anglo-American has 
ever been an aggressive pioneer; and it was impossible, 
even had it been desirable, to prevent his going as far 
to the southwest as his government extended. Spain 
had serious apprehensions, which the future amply jus- 
tified, that he would prove a restless and undesirable 
neighbor. The true boundary was so uncertain that the 
two Nations could not for a long time agree upon it. 
Under these conditions, in 1806, they did agree that the 
question of the boundary should be left open for a while, 
and that a neutral strip, that is, a section over which 
neither Nation should exercise jurisdiction, should be es- 
tablished, extending from the Sabine River on the west 
to the Arroya Hondo, a tributary of the Red River, on 
the east. Politically this neutral strip became some- 
what of a No-man's-land, where, as no one had author- 
ity, all were free to go and do as they pleased. This 
condition as to the boundary existed until 1819, when the 
United States purchased Florida from Spain. In the 
treaty made at this time Spain relinquished all claim to 
territory east of the Sabine River, so that the boundary, 
at least in the territory near the Gulf coast, was fixed. 

Mexican Revolution. Early in the nineteenth century 
the Spaniards in the territory now included in the Re- 
public of Mexico began a revolt against Spain, which 



222 Civil Government 

was waged with varying results until 1824, when the 
Republic of Mexico was established by the adoption of 
a permanent written Constitution. This Government was 
to a large extent modeled after that of the United States, 
though in some important respects it differed from it. 

Political Conditions in Texas. While this revolution, 
or series of revolutions, was in progress in Mexico, and 
even before that time, there were numerous political dis- 
turbances in Texas. These varied in cause, purpose and 
duration, but all had this in common: one or more en- 
terprising Anglo-Americans were the moving spirits in 
each. None of them had the general support of the real 
settlers of Texas, and most of them were failures from 
the first. None achieved success that was permanent. 

While Texas was under the dominion of Spain it had 
many political experiences. Its government was shifted 
about from one administration to another so rapidly that 
no one of these had much opportunity to leave any per- 
manent impress upon the country or its institutions. 

Texas in the Mexican Eepublic. In the creation of the 
Eepublic of Mexico, Texas was combined with Coahuila, 
the two forming a State under the name of Coahuila 
and Texas. This State had a written Constitution, which 
in some respects was quite similar to a State Constitution 
in the United States. The capital was in Saltillo, Coa- 
huila. Its Congress, as the Legislature was called, con- 
sisted of twelve members, ten from Coahuila and two 
from Texas. Its Supreme Court sat in the State capital. 
All the traditions and most of the political ideas of the 
Mexicans were very different from those of the Anglo- 
Americans who had come, and who were still coming, into 
Texas. The Texans did not readily adapt themselves to 
a civilization and a form of government to which they 
felt themselves superior, and trouble was inevitable. One 



Government of the States 223 

of the principal grounds of complaint was that there was 
no stability in the Mexican Government. In the Consti- 
tution of the Mexican Republic it was provided that at 
some propitious time Texas and Coahuila should be di- 
vided, and Texas should become a separate State. The 
Texans naturally looked forward with impatient longing 
to the time when this promise should be fulfilled. It was 
a subject of frequent and anxious discussion among the 
settlers, and was often brought up in the public meet- 
ings. 

Colonization of Texas. In the meantime Mexico had 
been persuaded into a number of schemes for the coloni- 
zation of Texas, all of which contemplated the introduc- 
tion of settlers from the United States who were to come 
under the control of a leader or Empressario, and who 
were to make their homes in Texas and develop its re- 
sources. 

By special agreement or grant of authority the first of 
these settlements was made under the leadership of Moses 
Austin. At his death his son Stephen F. Austin succeeded 
to his rights, and became one of the founders of the Re- 
public. The other settlements were made under terms 
of general colonization laws, either of the Republic in 
1824, or of Coahuila and Texas after that date. Un- 
der these colonial settlements Anglo-American immigra- 
tion was so increased that gradually the number of Mexi- 
cans was less than that of the immigrants. 

Revolt in Mexico. The plan of government set forth 
in the Mexican Constitution was reasonably good, but 
the Mexicans seemed unable to exercise it. One ambiti- 
ous ruler after another would either revolt against the 
Government as established under the Constitution, or 
would so pervert the Constitution as to amount to re- 
volt in the end. This political unrest, always great, in 



224 Civil Government 

a short time developed into such distrust and opposition 
as to necessitate change. 

Effect in Texas. Communication between Texas and 
the City of Mexico was at that time slow and difficult, 
so that the Texans were not always aware of the precise 
state of affairs in the heart of the Republic. They knew 
that conditions were disturbed and unsatisfactory, and 
that redress of political grievances through regular chan- 
nels was tardy and uncertain. The provisions in the Con- 
stitution of the Mexican Republic which contemplated 
the separation of Texas from Coahuila and its erection 
into a separate State were still looked to by many Texans 
as a means of relief. They had been induced to come to 
Texas on the expectation that Mexico was to be a re- 
public, governed under a written constitution; and those 
who came after 1824 claimed the specific guarantees of 
the Constitution of that year. This Constitution had 
been ignored and practically overthrown. 

Santa Anna's Usurpation. In 1832 the Republicans of 
Mexico began a revolution to re-establish the Constitu- 
tion. Santa Anna was their military leader, and no 
sooner had he overthrown the former despotic author- 
ities than he turned the army, which the Republicans had 
helped him to raise, against his recent political adherents ; 
and assumed the powers and authority of a military des- 
pot. The Texans did not even know how these matters 
were progressing in Mexico. They still had hopes of the 
Republic under the Constitution of 1824. One convention 
was held in 1832, and another in 1833, to induce the 
Mexican authorities to consent to the separation of Coa- 
huila and Texas, and to grant to the latter all the privi- 
leges of independent statehood. The last of these sent 
Stephen F. Austin as a Commissioner to the Mexican 
Government to secure this. He was imprisoned for nearly 



Government of the States 225 

two years, after which he returned to Texas, reaching 
there in August or September of 1835. During his ab- 
sence dissatisfaction at existing conditions increased. 

The States of Zacatecas and of Coahuila and Texas, 
being in the extreme northeast of the Republic, were 
removed from the seat of Santa Anna's military opera- 
tions. In 1835, having brought all of the other Mexican 
States sufficiently under his power, he moved his army 
against these northeastern States. He first attacked and 
subdued Zacatecas, and then invaded Texas. This inva- 
sion was in progress when Austin returned. 

The Consultation of 1835. Such were the general con- 
ditions when the Consultation of 1835 was called to meet 
at San Filipe de Austin, the capital of Austin's Colony. 
This assemblage was larger and more representative than 
any of its predecessors; still, there were a number of 
large settlements not represented. On November 3, 1835, 
the Convention met and organized. 

The members were divided in sentiment. Some de- 
sired separation from Coahuila, and existence as a sep- 
arate State in the Mexican Republic. Others desired 
complete severance of all political relations with the Re- 
public. After due deliberation the Consultation, as this 
convention was called, pledged loyalty to the Mexican 
Republic under the Constitution of 1824, and then re- 
newed the demand for separation from Coahuila. 

It also organized a provisional State Government, com- 
posed of a Governor, a Lieutenant Governor, and a Coun- 
cil, to whom it entrusted the conduct of the Government 
until the effort to secure separate statehood should either 
fail or succeed. In the meantime an army was being 
gathered together under the command of General Sam 
Houston for the purpose of resisting Santa Anna. 
15 



226 Civil Government 

Convention of 1838. It became more and more ap- 
parent that the plan for separate statehood in the Mexi- 
can Republic could not be carried out. In December, 
1835, the Governor and his Council called another Con- 
vention to meet in. Washington on March 1, 1836. Dele- 
gates were elected from almost all of the large communi- 
ties, and assembled on the day named. On the following 
day they declared Texas to be a free, sovereign and inde- 
pendent Nation. The Convention remained in session in 
order to prepare a permanent Constitution. As the ma- 
jority of the new Nation's best citizens were then in 
arms, the Constitution could not be submitted to them 
for acceptance or rejection, nor could they take part in 
any Governmental affairs. It was therefore necessary 
for the Convention to provide a plan for carrying on 
the affairs of Government until an election could be held 
by the citizens. The preparation of these two papers, 
the Constitution and the plan of the temporary govern- 
ment, detained the Convention until March 17th. 

Military Operations. In the meantime the Alamo had 
fallen with the slaughter of Travis and his two hundred 
men, and Fannin and his soldiers had been massacred 
at Goliad. Houston had reached Gonzales March 11th, 
and, being informed of the fall of the Alamo, had begun 
to retreat eastward. This eastward march continued 
with little interruption, with Santa Anna in rapid pur- 
suit, until April 21st, when the two armies met on the 
battlefield of San Jacinto. It was here that Texan inde- 
pendence was won. 

Government ad Interim. The temporary Government 
established by the Convention of 1836 consisted of a 
President and his Cabinet. David G. Burnett was in- 
stalled as President. He and his Cabinet took charge of 
affairs, and administered them as best they could under 



Government of the States 227 

the existing circumstances. This ad interim Government 
ordered an election to be held on September 1st, 1836, 
for the purpose of voting on the adoption of the Consti- 
tution. In order to expedite matters the officers provided 
for in the Constitution were also to be voted on at this 
time, If the Constitution were adopted, the officers 
elected would qualify and at once go on with the Gov- 
ernment; if the Constitution were defeated, the vote for 
officers would be of no effect. 

Republic of Texas. The Constitution was adopted al- 
most without opposition, and Sam Houston was elected 
President. The first Congress under the Eepublic as- 
sembled the following October, and the new Nation was 
fully organized in all its departments. 

The Government thus organized was National in its 
nature. It was a Unitary State in the fullest sense, pos- 
sessing in itself all the powers of sovereignty which in 
the United States are divided between the Federal Gov- 
ernment and those of the States. Its Constitution was 
modeled to some extent after that of the United States, 
though the differences just pointed out mark it as unique. 
The three departments of government were recognized, 
and it was provided that no officer in any one of them 
could exercise any power properly belonging to any 
other, unless the Constitution so expressly stated. 

The chief executive was called a President. His Cab- 
inet consisted of a Secretary of State, Secretary of War, 
Secretary of the Navy, Secretary of the Treasury and 
an Attorney General. 

The legislature was called the Congress, and consisted 
of two houses, the Senate and the House of Representa- 
tives. 

The Judicial Department consisted of a Supreme Court. 
of District Courts, of County Courts, and of Justices 



228 Civil Government 

Courts. Original jurisdiction was divided among the 
last three; the Supreme Court having appellate powers 
only. 

Jurisprudence of Texas. Spain is a civil or Roman 
law country; and thus the Roman law, as modified in 
Spain and Mexico, was in force in Texas when it achieved 
its independence. The Anglo-Americans were all from 
common law countries, and possessed the mental train- 
ing and political traditions belonging to these. The re- 
sponsibility of founding a system of jurisprudence was 
great, and they set themselves deliberately and patriotic- 
ally to the task. There are some matters which are in 
their nature permanent, which will not admit of sudden 
or violent changes; there are others which may be al- 
tered at will without seriously disturbing the prosperity 
and peace of the community. The founders of the Re- 
public chose wisely between these. Laws relating to the 
family and the rights and duties of the husband and wife 
they left unchanged. Laws pertaining to land and land 
titles were changed but little; but many others were al- 
tered radically. In court procedure the result was a 
decided compromise. The civil law had never recognized 
any distinction between law and equity such as existed 
in England and the common law States of the Union. 
No such a body as a grand or petit jury was known to 
the civil law. Its rules of pleading and evidence were 
very different from those of the common law. The foun- 
ders of the Republic refused to introduce the distinctions 
between law and equity, but did establish trial by jury. 
They retained the civil law as to pleading, but rejected 
it as to evidence. Like choice was made as to many 
other matters which might be mentioned. 

Original Legislation in Texas. Apart from this pro- 
cess of selection and combination of the best from each 



Government of the States 229 

system into a jurisprudence such as the world had never 
known, these statesmen originated some very important 
governmental policies. Among these is the homestead 
law. At common law all that a debtor had could be 
seized and sold for his debts. Even the bedding of his 
family, their food, or their fuel, could be taken, and in 
addition the debtor himself could be put into jail until 
the debt was paid. Texas declared in its Constitution in 
1836 that no man should be imprisoned for debt, and its 
Congress in 1839 exempted from forced sale a small por- 
tion of personal property and, if the debtor had a family, 
a home. It further provided that on the death of the 
debtor these privileges and exemptions should continue 
for the benefit of his family. This home, free from seiz- 
ure for debt, was to be the refuge for the unfortunate 
and his family, the hearth-stone where, in spite of ad- 
verse fortune, children could be reared who would be 
filled with love of country and who would be ready to 
live and die in its defense. This policy needs no higher 
commendation than the fact that in some form it has 
been adopted in nearly all of the forty-six States of the 
Union, and that no State which has adopted it has ever 
receded from it. The fathers of Texas laid their founda- 
tions deep and true, and their sons have builded upon 
them without fear or favor, until the fair fabric of our 
Jurisprudence is without a successful rival. It is sim- 
pler and more just than the common law ; more direct and 
democratic than equity, and more modern and adaptable 
than the civil law. Under its benign provisions the 
courts have larger freedom in choosing the right and in 
rejecting the wrong than under any of the other sys- 
tems supported only by precedent. 

Success of the Republic. The independence of Texas 
was recognized by the United States in 1837, not long 



230 Civil Government 

thereafter by France, and then by England. It had many 
and great difficulties, mostly due to lack of finances. Its 
principal resources were in its extensive public lands, 
and its settled policy was to encourage the settlement 
and development of these. This policy is shown in al- 
most all the legislation of the times. Large tracts of 
land were offered to heads of families who should settle 
within its borders, and smaller tracts to unmarried 
men. As already stated, homes made on these lands were 
exempted from sale for debts. The building of public 
and private schools was encouraged, and to the public 
schools was given an enormous share of the public do- 
main. Short periods of limitation were made under 
which the man who had borne the "heat and burden of 
the day" in actually opening up the country was given 
the land on which he had settled, even though he had 
made a mistake as to the location of his land, or as to 
his title. Laws were passed entitling those who in good 
faith had improved lands belonging to another, if they 
had been in possession for one year, to just compensa- 
tion from the owner, even though they had not occupied 
the lands long enough to give them title by limitation. 
By these and other laws the general policy of the Ee- 
public invited sturdy and intelligent immigrants to come 
and make homes for themselves, which would at the same 
time increase the taxable values and revenues of the coun- 
try. This policy was wise in its conception, and is justi- 
fied in its result. In 1845 Texas was annexed and be- 
came one of the States in the United States of America. 
Texas as a State Prior to the Present Constitution. 
Texas was annexed to the United States in 1845. Its 
first Constitution as a State was adopted in that year. 
It was prepared for the purpose of organizing a govern- 
ment adapted to the proposed change in its political 



Government of the States 231 

status on coming into the United States. This Constitu- 
tion was very similar to that of the Republic, except 
that it omitted all provision for the exercise of National 
powers, which were to be ceded by annexation to the 
United States. It is a most admirable Constitution for 
a State, and is often referred to by statesmen of ability 
and experience as a model by which such instruments 
may be drafted. It provides for a republican form of 
government, as that term has been explained. It sepa- 
rated the three departments of government, and assigned 
to each the duties generally recognized as belonging to 
it. The Legislature consisted of two Houses, as under 
the Eepublic. The chief executive was called the Gov- 
ernor. Otherwise the Executive Department was changed 
by dropping out the Secretaries of the Navy and of War. 
The other cabinet officers were retained in name, though 
the duties of some of them, notably of the Secretary of 
State, were markedly different. The Judicial Depart- 
ment was substantially the same as under the Eepublic, 
though some alterations were made. This Constitution 
necessarily recognized the United States of America, and 
the State of Texas as a member of that Union. 

Secession. There were no changes in the fundamental 
law of Texas until the State adopted the Ordinance of 
Secession of 1861. It then became necessary to so amend 
the Constitution as to conform to membership in the 
Southern Confederacy. This was done. Texas cast her 
lot with the other Southern States, and bore her part 
in the devastating war that followed. She suffered lit- 
tle from invasion of her territory, but the strength of 
her manhood was freely given, and there was not one 
great battle fought in that long struggle in which Texans 
did not prove their willingness to die for their country 
and her institutions as they understood them. 



232 Civil Government 

Reconstruction. In 1866 the Constitution was again 
changed in an effort to meet the conditions brought about 
by the overthrow of the Confederacy. The days of Re- 
construction came on, and it was necessary to adopt a 
new Constitution to meet the demands of Congress. A 
Convention was called in 1868. At this time all of the 
Confederate soldiers were disfranchised, and the Conven- 
tion was far from a representative body of Texans. The 
Constitution was framed and accepted by Congress, and 
Texas, after the 30th day of March, 1870, was again a 
State in the American Union. 

Present Constitution. This Constitution of 1869 was 
in force until April 19th, 1876, when the one framed and 
adopted in 1875 went into effect. Many amendments to 
this latter Constitution have been proposed from time 
to time. The majority of these have been defeated when 
submitted to the people for adoption. Several have been 
adopted. Among the most important of those adopted 
are: one providing for the creation of a Railroad Com- 
mission, which was voted on in 1890, and another, chang- 
ing the judicial system, voted on in 1891. 

This Constitution of 1876, as modified by the various 
amendments adopted since that date, is the present fun- 
damental law of the State, and as such will be the basis 
of our treatment of the various departments of the Gov- 
ernment of Texas. 

RECAPITULATION. 

The territory now included in Texas was for a long 
time in dispute between France and Spain. In 1803 the 
United States succeeded to all the rights of France. 

The United States and Spain then agreed that there 
should be a strip extending from the Arroya Hondo on 
the east to the Sabine River on the west over which 
neither should exercise jurisdiction. 



Government of the States 233 

In 1819, in connection with the sale of Florida, Spain 
relinquished all claim to territory east of the Sabine. 

The Mexican Revolution began about 1810, and con- 
tinued till 1824, when the Mexican Republic was estab- 
lished with a written Constitution. 

Under this Constitution Texas and Coahuila composed 
a single State, with a promise of separation when prac- 
ticable. 

The Anglo-American settlement of Texas under Span- 
ish authority began early in the nineteenth century, and 
continued steadily till the Texas Revolution in 1836. 

There were irreconcilable differences between the An- 
glo-Americans and the Spaniards. Their habits, tradi- 
tions, and ideas of government were radically distinct. 

These differences led to many disputes, and as the pro- 
portion of Anglo-Americans increased these became more 
frequent. 

Several efforts were made to have Texas separated 
from Coahuila and recognized as a State in the Mexican 
Republic. After the attempts for separate statehood 
failed, and Santa Anna had set up a military govern- 
ment, Texas declared her independence on March 2, 1836. 

The convention which declared independence organized 
a temporary government to carry on the war with Mex- 
ico, and also prepared a Constitution for the Republic, 
which was to be submitted to the people when that should 
become practicable. 

Santa Anna was defeated in the battle of San Jacinto 
April 21, 1836. 

The Constitution of the Republic was adopted Septem- 
ber 1, 1836, and the Government fully organized there- 
under in October, 1836. 

The Republic of Texas was a complete Unitary State, 
having and exercising all the powers of sovereignty. 

In this Republic the three departments were declared 



234 Civil Government 

to be separate. The Roman law, as modified by Spain 
and Mexico, was the law of the land. The Texans were 
common law people. The Jurisprudence of Texas was 
formed by combining much of the best elements of both 
the Eoman and common law, and adding thereto other 
desirable doctrines. 

The common law was substituted for the Eoman in all 
matters not governed by written law. 

The Texans refused to change materially the Roman 
law as to married persons, and in many respects as to 
lands. They refused to separate law and equity, or to 
adopt the common law or equity pleadings. 

Texas originated the Homestead law. 

Many laws were passed to encourage immigration. 
Many of these provided for gifts of tracts of lands to 
all actual settlers, and for the protection of settlers in 
good faith on lands belonging to others in their homes 
and improvements. 

In 1845 Texas was annexed to the United States by 
treaty between the two Nations. 

The first Texas State Constitution was adopted in 1845, 
and under it Texas entered the Union. This Constitu- 
tion continued as the framework of the State Government 
until 1870, when the Reconstruction Constitution of 1869 
was adopted. 

The Constitution of 1869 was superseded by that of 
1876, which, together with its amendments, is the present 
fundamental law of the State. 

QUESTIONS. 

I. 1. What two European countries each claimed the territory 
now in Texas? 2. How was this dispute a matter of boundary? 

3. How did the United States succeed to the rights of France? 

4. In connection with what purchase was the boundary finally 
fixed and where is it located? 



Government of the States 235 

II. 1. When did the Mexican revolution begin and when was 
the Mexican Republic established, and how? 2. What was the 
political history of Texas under the Constitution of 1824, and 
what promise was there in that instrument as to the future of 
Texas? 3. How was immigration to Texas encouraged by the 
Mexican authorities ? 

III. 1. Outline political conditions in Mexico from 1824 to 
1836. 2. What was the purpose of the Convention held in Texas 
in 1832, and in 1833? When did Santa Anna invade Texas, and 
for what purpose ? 

IV. 1. What was the Consultation of 1835? 2. When and 
where did it meet, and what action did it take as to the political 
status of Texas? 3. What was the nature and purpose of the 
government established by it, and of what officers did it consist? 

V. 1. When and where did the Convention of 1836 meet? To 
what extent did this represent the people of Texas? 2. When was 
the Texas Declaration of Independence adopted, and by whom? 3. 
What was the purpose and effect of this declaration? 4. What 
two other papers were prepared by this Convention, and what 
was the nature and purpose of each? 5. When was the battle 
of San Jacinto fought, and what was its effect? 

VI. 1. When was the Constitution of the Republic of Texas 
adopted, and when was the Government actually organized under 
it? 2. What was the nature of the Republic of Texas? What 
provision was made for keeping the Departments of Government 
separate? 3. What was the Chief Executive's office called? What 
was the legislature called? 

VII. 1. What system of laws had been in force in Texas under 
the Spanish and Mexican Governments? 2. To what system were 
the Texans accustomed? 3. From what sources did the Texans 
select their laws? 4. Name some matters in which they followed 
the common law. 5. Did the Texans originate any new doctrines? 
Name one of them. 

VIII. 1. Outline the general policy of the Republic of Texas. 
2. When and how did it cease to exist? 

IX. 1. When did Texas begin to exist as a State? 2. What 
powers did the people of Texas have under the Republic which were 
given up when they became a State? 3. Give the general pro- 
visions of the Constitution of 1845. 4. How often and at what 
times was the Constitution of Texas changed after 1845 and before 
1875. 



236 Civil Government 

CHAPTER XX. 

THE CONSTITUTION OF 1876. 

Its Preparation and General Features. The Legisla- 
tures of Texas immediately after the Civil War, when a 
very large percentage of the citizens and particularly of 
the taxpayers of the State were disfranchised, were com- 
posed largely of men who had little, if any, permanent 
interest in the State or its prosperity. They looked only 
to the conditions then existing, and to the opportunity 
which these afforded for putting into effect policies which 
conformed to the opinions then ascendant. They were 
reckless with public money, and without regard for those 
who had made Texas what it was ; and thus was provided 
a theatre in which the time-serving politician could ex- 
ploit himself. To a ver}^ appreciable extent the same 
elements were in control in the Constitutional Conven- 
tion of 1868. This was shown in the nature of the work 
done by that convention, and particularly in the Con- 
stitution which it put forth. Under this Constitution, 
which went into effect April 18, 1869, Congress readmitted 
Texas into the Union. Not long afterward Congress re- 
moved the political disabilities from most of those who 
had been disfranchised by the Fourteenth Amendment, 
and the real citizenship of Texas was again free to take 
part in her political affairs. At the general election in 
1872 the Democratic State ticket, led by Richard Coke, 
of Waco, as candidate for Governor, carried the State 
by a large majority. B. J. Davis, who was Governor at 
the time, had been a candidate for re-election. The va- 
lidity of the election was called into question by a ha- 
beas corpus proceeding before the Supreme Court of the 
State as then organized. That court declared the elec- 
tion void. The Legislature chosen at the election thus 



Government of the States 237 

declared to be null was largely democratic. General Grant 
was then President of the United States. Davis and the 
Republicans, relying on the decision of the State Supreme 
Court to sustain them, refused to surrender their offices to 
the Democrats who had been chosen to succeed them. The 
Democrats were insistent. Davis had the support of the 
Militia. Coke had the support of the Sheriff of the 
County and of the great body of citizens. The partisans 
of each side took up arms, Davis and his supporters oc- 
cupying the executive chambers and lower story of the 
old Capitol building, while Coke and his followers held 
the Representative hall on the second floor. The situa- 
tion was critical in the extreme. Davis called upon 
President Grant for military assistance. Grant took the 
time and trouble to ascertain the real facts of the case, 
and refused to interfere. Davis yielded, and Coke was 
sworn in as Governor. 

Convention of 1875, and Constitution of 1876. A Con- 
vention was called in 1875 to prepare and submit a new 
Constitution. In this Convention were many men, illus- 
trious in the history of Texas before and since that time, 
who had not been permitted to vote when the previous 
Convention was held. The instrument prepared and sub- 
mitted by this body bears internal evidence of the experi- 
ences through which the State had passed during Recon- 
struction. The people had become distrustful of legisla- 
tion. They put into the Constitution of 1876 more restrict- 
ive provisions than can be found in any other fundamen- 
tal law. There are twenty-nine sections in the Bill of 
Rights, many of which contain a number of limitations. 
There are at least thirty-five restrictive sections in the Ar- 
ticle on the Legislative Department, several of these having 
quite a number of subdivisions, and one, Section 56, em- 
bodying thirty separate denials of power. In addition 



238 Civil Government 

to all these, there are restrictive clauses scattered through- 
out the body of the Instrument. This prevalence of nega- 
tion stands as a monument to the efficiency of the carpet- 
bagger as a teacher in the school of practical politics. 

The Preamble. "Humbly invoking the blessings of 
Almighty God, the people of the State of Texas do or- 
dain and establish this Constitution." This simple sen- 
tence is worthy of most careful consideration. It de- 
clares that the people of Texas are the source and seat 
of all political power pertaining to that State. This power 
is not derived, but primary; not delegated, but inherent. 
The same thought is expressed in Sections 1, 2 and 3 of 
the Bill of Rights, in these words: 

Section 1. Texas is a free and independent State, subject only 
to the Constitution of the United States; and the maintenance of 
our free institutions and the perpetuity of the Union depend upon 
the preservation of the right of local self-government unimpaired 
to all the States. 

Sec. 2. All political power is inherent in the people, and all 
free governments are founded on their authority, and instituted for 
their benefit. The faith of the people of Texas stands pledged to 
the preservation of a republican form of government, and subject 
to this limitation only they have at all times the inalienable right 
to alter, reform, or abolish their government in such manner as 
they think expedient. 

Sec. 3. All free men when they form a social compact have equal 
rights, and no man or set of men is entitled to exclusive public 
emoluments or privileges but in consideration of public services. 

In these sections the people of Texas recognize the 
Constitution of the United States and its paramount na- 
ture in all matters covered by it, and their obligation to 
maintain a republican form of government, thus showing 
their attitude toward the United States and its Constitu- 
tion. This is followed by the solemn declaration that in 
all things else the people of Texas are sovereign, charged 
with the responsibilities of and equal to the task of self- 



Government of the States 239 

government. They declare "that all political power is 
inherent in the people." This means "the people" col- 
lectively, and that, subject to the limitations in the Con- 
stitution of the United States and of the State, the col- 
lective will, or, in other words, the will of the majority, 
rules. 

Recognition of God and Religions Liberty. Returning 
to the opening clause of the preamble and its invocation 
of Almighty God, we find in it a recognition of the in- 
disputable fact that the people of Texas, taking them 
collectively, are a Christian people ; and that in their col- 
lective capacity, when they come to great crises in their 
history, they look to God and depend upon Him for bless- 
ing and aid. This right of the great majority of the peo- 
ple, in whom inheres all political power, to call to their 
aid the God of their fathers, is an inalienable right, of 
which they cannot be deprived so long as they hold to 
the Christian faith in reverence and sincerity. On the 
other hand, this majority has no right to force the con- 
science of the minority or of any individual who does not 
share in this faith. This fundamental truth is fairly 
recognized in the Constitution, Sections 4, 5, 6 and 7 of 
the Bill of Rights, which are as follows: 

Sec. 4. No religious test shall ever be required as a qualifica- 
tion to any office, or public trust, in this State; nor shall any one 
be excluded from holding office on account of his religious senti- 
ments, provided he acknowledge the existence of a Supreme Being. 

Sec. 5. No person shall be disqualified to give evidence in any 
of the courts of this State on account of his religious opinions, 
or for want of any religious belief, but all oaths or affirmations 
shall be administered in the mode most binding upon the con- 
science, and shall be taken subject to the pains and penalties of 
perjury. 

Sec. 6. All men have a natural and indefeasible right to wor- 
ship Almighty God according to the dictates of their own con- 
sciences. No man shall be compelled to attend, erect or support 



240 Civil Government 

any place of worship, or to maintain any ministry against his 
consent. No human authority ought, in any case whatever, to con- 
trol or interfere with the rights of conscience in matters of re- 
ligion, and no preference shall ever be given by law to any re- 
ligious society or mode of worship. But it shall be the duty of 
the Legislature to pass such laws as may be necessary to protect 
equally every religious denomination in the peaceable enjoyment 
of its own mode of public worship. 

Sec. 7. No money shall be appropriated or drawn from the 
treasury for the benefit of any sect or religious society, theological 
or religious seminary; nor shall property belonging to the State be 
appropriated for any such purposes. 

It is useless to attempt to add to the force and au- 
thority of the language just quoted. Taken with the 
preamble, it means that every man shall be free to en- 
tertain his own religious beliefs, without interference of 
any kind; that this right shall be protected by law; 
that church and state are and of right ought to be sep- 
arate; that no one shall be deprived of any right on ac- 
count of any religious belief or the absence of any such 
belief; that the privilege of holding office within the 
State is not extended to any one who does not acknowl- 
edge the existence of a Supreme Being; and that since 
the majority of the people are Christian in faith that this 
majority has and exercises the right to recognize and 
call upon God for guidance and blessing in their political 
action. 

The remaining sections of the Bill of Rights will be 
considered later. 

The Powers of Government. Article II of the Consti- 
tution of Texas provides: 

Section 1. The powers of government of the State of Texas shall 
be divided into three distinct departments, each of which shall 
be confided to a separate body of magistracy, to-wit: Those which 
are Legislative to one, those which ar Executive to another, and 
those which are Judicial to another; and no person, or collection 



Government of the States 241 

of persons, being of one of these departments, shall exercise any 
power properly attached to either of the others, except in the in- 
stances herein expressly permitted. 

It will be noticed that there is no article or section in 
the Constitution of the United States corresponding to 
this. While that instrument deals with the three great 
departments of government as separate, it does not ex- 
pressly declare them to be so, nor does it deny to an 
officer in one of them the right to exercise powers per- 
taining to another. The Texas Constitution does both 6 
It is well also to note that the inhibition against the ex- 
ercise of power by the same person in two departments 
applies in all instances unless expressly permitted by the 
Constitution. Hence, any officer claiming such right must 
be prepared to show the express grant of authority so to 
do. 

Too much stress cannot be laid upon this Article. Tyr- 
anny is but the concentration of power; and the officer, 
or set of officers, who has the power to make, construe, 
and enforce the law on any subject is as to that matter 
endowed with tyrannical power. It may be that they will 
use it properly and for the public good, but the chances 
are against this, even when the authority is short-lived; 
and, if such power be made perpetual, its ultimate abuse 
is a practical certainty. When the people are requested 
to confer such concentrated power the question for con- 
sideration is not so much what good can good men ac- 
complish under it, but what evil may the vicious do 
under its protection. 

Political Rights. Article VI of the Constitution of 
Texas provides : 

Section 1. The following classes of persons shall not be allowed 
to vote in this State, to -wit: 

First — Persons under twenty-one years of age. 
16 



242 Civil Government 

Second — Idiots and lunatics. 

Third — All paupers supported by any county. 

Fourth — All persons convicted of any felony, subject to such ex- 
ceptions as the Legislature may make. 

Fifth — All soldiers, marines and seamen employed in the service 
of the army or navy of the United States. 

Sec. 2. Every male person subject to none of the foregoing dis- 
qualifications, who shall have attained the age of twenty-one years, 
and who shall be a citizen of the United States, and who shall 
have resided in this State one year next preceding an election, and 
the last six months within the district or county in which he of- 
fers to vote, shall be deemed a qualified elector; and every male 
person of foreign birth, subject to none of the foregoing disquali- 
fications, who, at any time before an election, shall have declared 
his intention to become a citizen of the United States, in accord- 
ance with the Federal naturalization laws, and shall have resided 
in this State one year next preceding such election, and the last 
six months in the county in which he offers to vote, shall also be 
deemed a qualified elector; and all the electors shall vote in the 
election precinct of their residence; provided, that electors living 
in any unorganized county may vote at an election precinct in the 
county to which such county is attached for judicial purposes. 

Sec. 3. All qualified electors of the State, as herein described, 
who shall have resided for six months immediately preceding an 
election within the limits of any city or corporate town, shall have 
the right to vote for mayor and all other elective officers ; but in 
all elections to determine expenditure of money or assumption of 
debt, only those shall be qualified to vote who pay taxes on property 
in said city or incorporated town; provided, that no poll tax for 
the payment of debts thus incurred shall be levied upon the persons 
debarred from voting in relation thereto. 

Sec. 4. In all elections by the people the vote shall be by bal- 
lot, and the Legislature shall provide for the numbering of tickets 
and make such other regulations as may be necessary to detect 
and punish fraud and preserve the purity of the ballot-box; and 
the Legislature may provide by law for the registration of all voters 
in all cities containing a population of ten thousand inhabitants 
or more. 

Sec. 5, Voters shall, in all cases, except treason, felony or 
breach of the peace, be privileged from arrest during their attend- 
ance at elections, and in going to and returning therefrom. 



Government of the States 243 

Article VI regulates the right to vote. It is noticeable 
that this right is not made to depend on citizenship either 
in Texas or in the Federal Government. The Article be- 
gins by excluding certain classes from the privilege of 
voting. These may be summed up as follows: Minors, 
idiots, lunatics, paupers, convicted felons, and soldiers in 
the United States Army or Navy. The second section 
specifies who may vote. These are adult males, who have 
resided in the State for one year and in the district or 
county in which they offer to vote for the last six months 
preceding the election; they must either be citizens of 
the United States, or must have declared their intention 
to become such in accordance with the laws of naturali- 
zation. Under a later amendment a person thus qualified 
must have paid, before the first of February in the year 
in which he offers to vote, all poll taxes imposed by law 
for the current year. The elector can vote only in the 
election precinct in which he resides at the time the 
election is held. 

In city or town elections which do not determine the 
expenditure of money all persons qualified to vote in 
State elections, who have resided in the city or town for 
the last six months before the election, are permitted to 
vote. If the election involves the expenditure of money, 
only those are qualified to vote who are voters under 
the State laws and who pay taxes on property in such 
city or town. Under the late amendment to the Consti- 
tution to be entitled to vote at a city election the person 
must have paid State, county, and also city poll tax, be- 
fore February 1 of the year in which he offers to vote. 

Regulation of Elections. The first clause of Section 4. 
Article VI, is as follows : 

In all elections by the people the vole shall be by ballot, and 
the Legislature shall provide for the numbering of tickets and make 



244 Civil Government 

such other regulations as may be necessary to detect and punish 
fraud and preserve the purity of the ballot-box. 

The concluding sentence of Section 2, Article XVI, de- 
clares : 

The privilege of free suffrage shall be protected by laws regu- 
lating elections, and prohibiting under adequate penalties all un- 
due influence therein from power, bribery, tumult, or other improper 
practice. 

A ballot is a paper on which the voter indicates the 
names of the candidates for whom he desires to vote, 
and the respective offices which he desires each to fill. 
These names and offices must be printed or written. To 
vote by ballot is to deposit such a paper with the proper 
election officers, and to have the same fairly counted and 
given due recognition. The voter's preference, as ex- 
pressed, must be recognized and estimated in making up 
the result; but his right does not stop here. Not only 
must his vote be counted, but it must be counted for 
what it is really worth ; that is, it must be given a value 
equal to every other legal vote cast, and must be un- 
affected by the casting of any illegal vote. If at an elec- 
tion ten men only were legal voters, any six of them, col- 
lectively, would be entitled to carry the election, for 
they would constitute a majority. It would be manifestly 
unlawful for the election officer to permit ten other men 
who had no right to vote to deposit ballots against the 
six lawful voters, and to declare the election carried 
against the six on account of these unlawful votes. 

Laws to secure the protection of the ballot-box and 
the purity of elections, therefore, must cover the follow- 
ing : y 

First. The prescribing of proper qualifications for 
voters. This is done by the Constitution. Second. The 
giving to every qualified voter a reasonable opportunity 
to cast his ballot freely, thereby representing his own de- 



Government of the States 245 

liberate judgment. Third. The casting and count of 
such ballot; and fourth, the keeping of all illegal votes 
out of the count. Under such laws each legal vote will 
have its just value in arriving at the result. Under the 
sections of the Constitution just quoted it is the duty of 
the Legislature of Texas to make stringent laws cover- 
ing all these points. Acting under these sections, and 
under the power inherent in it as the Legislative Depart- 
ment of the State, the Legislature has recently passed 
a very elaborate and salutary bill regulating elections. 
This is generally known as the Terrell Election Law, be- 
ing so called from Honorable A. "W. Terrell, who intro- 
duced the original bill upon which the statute as passed 
was formed. 

So highly prized is the right to vote that the Consti- 
tution exempts voters "from arrest during their attend- 
ance at elections and in going to and returning there- 
from," except in cases of "treason, felony or breach of 
the peace." All saloons are required to be closed on 
election day, and it is a criminal offense to have or use 
intoxicants of any kind at or near the polls. 

Right to Hold Office. There is only one Constitutional 
qualification affirmatively required in Texas of all office- 
holders, and that is that they must acknowledge the 
existence of a Supreme Being. 

There are a number of disqualifications announced. 
Some of these are general and permanent, affecting quali- 
fication for all offices, and for all time ; others apply only 
to certain offices; and some only during the continuance 
of the designated condition. Article XVI, Section 4, 
disqualifies from holding office, and from voting as well, 
any citizen of Texas at any time after the adoption of 
the Constitution of 1875 who shall fight a duel, or act 
as a second in a duel, or who shall send or accept a 



246 Civil Government 

challenge to fight a duel, or who shall ''knowingly as- 
sist in any manner those thus off ending/ ' 

Section 5 of the same Article disqualifies any person 
who shall have been convicted of having " given or of- 
fered a bribe to procure his election or appointment. ' ' 
A bribe here has a very broad meaning, including prac- 
tically any pecuniary or personal benefit to the person 
aiding in securing the office. 

Among the partial or temporary disqualifications are 
the following : The holding of any office of trust or profit 
under the United States disqualifies from concurrent 
holding of any State office (Art. XVI, Sec. 12). 

No person holding any office of trust or profit under 
the United States or Texas or any foreign government 
during such holding shall be eligible to the Legislature 
(Art. Ill, Sec. 19). 

Members of the Legislature during their terms of of- 
fice are not eligible to any office created by the Legisla- 
ture of which they are members, nor the salary or emol- 
uments of which have been increased by such Legisla- 
ture, nor to any place or office the appointment to which 
may be made in whole or in part by the Legislature (Art. 
Ill, Sec. 18). 

No person who has been entrusted with public money 
is eligible to any office under the State until he has paid 
over all such money to the proper officer, and has ob- 
tained a discharge from all further obligations on that 
account (Art. Ill, Sec. 20). 

Right to Assemble and Petition. Article I, Section 27, 
guarantees that "The citizens shall have the right, in 
a peaceable manner, to assemble together for their com- 
mon good, and apply to those invested with the powers 
of Government for redress of grievances or other pur- 
poses, by petition, redress or remonstrances. " 



Government of the States 247 

RECAPITULATION. 

Texas was readmitted into the Union under the Con- 
stitution adopted in 1869. 

In 1875 a Constitutional Convention prepared and sub- 
mitted to the people a Constitution which if adopted was 
to supersede that of 1869. It was adopted and went into 
effect in 1876. It is usually spoken of as the Constitu- 
tion of 1876, and as subsequently amended is the present 
organic law of the State. 

During the reconstruction period the people of the State 
had become distrustful of their Legislatures, and so 
they put into the Constitution of 1876 more restrictive 
provisions than had been included in any of those pre- 
ceding it. 

The preamble and Sections 1 and 2 of the Bill of 
Rights assert the doctrine that political power is in- 
herent in the people of the State collectively, and that 
the exercise of such powers by individuals is by virtue 
of authority conferred by the people. It recognizes the 
Constitution of the United States and its paramount au- 
thority on all matters covered by it. In all things else 
it asserts the sovereignty of the people of the State. 

The preamble and Sections 4, 5, 6 and 7 of the Bill 
of Sights taken collectively recognize that Texas is a 
Christian country, but forbid the State in any way to 
establish any religion or take away freedom of conscience 
from any individual. 

Article II divides the government into the three usual 
departments, Legislative, Executive and Judiciary, and 
then forbids any officer in any of them to exercise any 
power properly belonging to another without express au- 
thorization in the Constitution. 

Article VI regulates suffrage. This right does not 
depend on citizenship. Minors, idiots, lunatics, paupers 



248 Civil Government 

and regular soldiers in the United States Army are denied 
this right. Adult males not belonging to any of the above 
classes who are citizens of the United States, or who have 
made application for naturalization, who have resided 
in the State one year or the county six months, are given 
the right to vote. 

To entitle to vote the elector must have paid the poll 
tax assessed against him for the previous year before 
February 1 of the year in which he offers to vote. 

It is the duty of the Legislature to make laws to pro- 
tect the people in free and fair elections. Such an elec- 
tion is one in which any qualified voter has a fair and 
reasonable opportunity to express his own personal choice 
and to have that choice receive its proportionate value in 
determining the result. 

Voting is by ballot. A ballot is a paper on which the 
voter indicates his choice in the way provided by law, 
and which he deposits with the election officers to be 
counted by them. 

No one who does not acknowledge the existence of a 
Supreme Being can hold office. Duelling, conviction of 
felony, and failure to account for public money, dis- 
qualify from holding public office. 

QUESTIONS. 

I. 1. Describe the general political conditions in Texas from 
1866 to 1869. 2. When and under what Constitution was Texas 
admitted into the Union after the war of 1861? 3. Outline briefly 
the election of 1872 and its consequences. 

II. 1. In what way does the Constitution of 1875 show the 
people's distrust of the Legislature, which they had learned dur- 
ing Keconstruction ? 2. What do we learn from the preambles 
of the Constitution and from Sections 1 and 2 and 3 of the Bill 
of Rights, as to the seat of sovereignty? 3. How is God recog- 
nized in the preamble to the Constitution? How is religious 
liberty guaranteed in the Bill of Bights? 



Government of the States 249 

III. 1. What does the Constitution provide as to separation of 
the departments of Government? 2. What is the force of the 
concluding portion of this provision? 3. Why is that provision 
important ? 

IV. 1. Who cannot vote in Texas? 2. Who may vote in 
Texas? 3. Is citizenship in Texas or in the United States an 
essential qualification of a legal voter? 4. About what propor- 
tion of the people of Texas can vote? 5. What is meant by 
voting by ballot? 6. What are the essentials of a fair election, 
and how can such an election be secured? 7. What is the present 
Texas election law called? 8. To what extent and why are 
voters free from arrest on election day? 

V. 1. What is the right to hold office? 2. What continuing 
disqualifications for office-holding are contained in the Constitu- 
tion? 3. What temporary or partial disqualifications are there? 
4. What is the right of petition? 



CHAPTER XXI. 

LEGISLATIVE DEPARTMENT. 

Legislative Power of the State. "The Legislative 
power of this State shall be vested in a Senate and House 
of Representatives, which together shall be styled 'The 
Legislature of the State of Texas.' " Art. Ill, Sec. 1. 

It is well to contrast this with the corresponding pro- 
vision in the Constitution of the United States, which is 
as follows: "All Legislative powers herein granted shall 
be vested in a Congress of the United States, which 
shall consist of a Senate and a House of Representatives. ' ' 

The contrast lies in the first clauses of the sections. 
The language in the State Constitution is: "The Legis- 
lative power of this State ;" that in the United States 
Constitution is, "All Legislative power herein granted." 
The State deals with power already possessed or in- 
herent in it; the Federal Government with power not 



250 Civil Government 

theretofore possessed, but granted by the Constitution. 
This difference is no accident. It is the statement of a 
fundamental fact, which, though often ignored and some- 
times even denied, is still too firmly established to be 
seriously doubted. 

All Legislative power over all political matters vested 
in the people of Texas when they established their in- 
dependence from Mexico. These powers they exercised 
in the establishment and maintenance of the Republic. 
They surrendered a portion of them to the United States 
upon annexation. All not so surrendered remained in 
them, and the adoption of the State Constitution and 
organization of the State Government under it was the 
exercise of these inherent powers. The Constitution of 
the United States was the creation of a new nation, out 
of separate and co-ordinate sovereignties, which found 
it to their common advantage to delegate certain of their 
powers to this new creation. It had no existence prior 
to the Constitution, and could not possess powers ex- 
cept those granted to it in the act of bringing it into 
being. 

The Texas Constitution does not attempt to confer all 
Legislative power without limitation. That would be 
equivalent to declaring Texas to be a unitary state, which 
it ceased to be when it by treaty with the United States 
became a part of that Government. The statement is 
"the Legislative power of this State ;" that is, all Legis- 
lative power not given over to the Federal Government, 
all this residuum of Legislative power, is vested in the 
Legislature of Texas. From these facts it follows that 
for an act of Congress tb be valid its supporters must 
be able to show authority in the Constitution of the 
United States for its enactment, while an act of a State 
Legislature is valid unless its opponents can show some- 



Government of the States 251 

thing in the Constitution of the United States, or in the 
laws passed by Congress in pursuance thereof, or in 
the Constitution of the State, which makes the act in- 
valid. 

The Legislature. The Legislature of Texas consists of 
a Senate and House of Representatives. It must meet 
once every two years on the second Tuesday in January 
after each general election, and may be called together 
oftener by the Governor. At a regular session it may 
legislate upon any matter within the Legislative power 
of the State. At a called session it can act only on mat- 
ters submitted to it by the Governor. 

The House and Senate must concur in all laws and 
joint resolutions passed by the Legislature. 

* ' Neither House shall, without the consent of the other, 
adjourn for more than three days, nor to any other place 
than that where the Legislature may be sitting.' ' 

Each House judges of the election and qualification 
of its own members, elects its own officers, determines 
its own rules of procedure, keeps a record of its own 
action, may punish or expel its members for improper 
conduct, and may punish other persons for contempt. 

The Senate. The State is divided into thirty-one Sen- 
atorial districts, and a Senator is elected from each by the 
qualified electors. A Senator must be a citizen of the 
United States and a qualified voter of the State, twenty- 
six years of age. He must have resided in Texas for 
ten years at the time of his election, and the last year 
he must have resided in the district from which he is 
elected. The term of a Senator is four years. Every ten 
years the State is divided on the basis of population as 
shown by the last preceding census. At the first session 
after such reapportionment the Senators draw for terms, 
half serving for two years, and the other half for four. 



252 Civil Government 

For the remainder of that ten years one-half of the Sena- 
tors are elected every two years. The terms of those 
chosen at the last election before the reapportionment is 
for only two years. This process is begun over after 
each apportionment. 

The functions of the Senate, apart from the House, 
are the confirmation of officers appointed by the Gover- 
nor, and the trial of all cases of impeachment on address 
presented by the House. 

Organization. The Lieutenant Governor presides over 
the Senate. He has a right to vote only in case of a 
tie. The Senate elects its other officers, the President 
pro tern, being chosen from its own members, and the 
others from persons not members. These other officers 
consist of a Secretary, an Assistant Secretary, a Journal 
Clerk, an Assistant Journal Clerk, a Calendar Clerk, an 
Enrolling Clerk, a Sergeant-at-Arms, an Assistant Ser- 
geant-at-Arms, a Doorkeeper, Assistant Doorkeeper, and 
a Chaplain. 

House of Representatives. The number of the members 
of the House is not fixed by the Constitution. The mini- 
mum number is 93 ; the maximum cannot exceed one Rep- 
resentative for every 15,000 inhabitants, nor can the num- 
ber be more than 150. There are now 109 districts, and 
133 members. 

The Representative Districts are determined by the 
Legislature, the State being so divided as to give one 
Representative to a designated number of inhabitants. 
This number is determined by the Legislature, but can- 
not be less than 15,000. 

The county is taken as the unit in this distribution of 
the Representatives as far as it may be conveniently 
done. If one county has approximately the number of 
inhabitants which entitle to a Representative, it is made 



Government of the States 253 

a Eepresentative District, and one member is elected from 
it. If a county has twice that number of inhabitants, 
is has two Eepresentatives. If there are a number of 
contiguous counties, no one of which has the requisite 
number, they are combined into a district. If there are 
several counties, each of which has population more than 
sufficient to entitle it to one Representative, but not 
enough for two, each is given a separate representative 
from it, and then all of them are combined into another 
district and another Representative is allowed from all 
of these counties. Such a Representative is frequently 
called a floater. 

A Representative must be twenty-one years of age, a 
citizen of the United States, a qualified voter, and must 
have lived in the State two years and in his district 
one year just preceding his election. The term of office 
is two years. 

Organisation of the House. The House elects its own 
presiding officer, called a Speaker, from its own member- 
ship. It also selects its other officers. These officers are 
a Chief Clerk, a Calendar Clerk, a Journal Clerk and 
Assistant Journal Clerk, an Engrossing Clerk, an Enroll- 
ing Clerk, a Reading Clerk, a Postmaster, a Doorkeeper 
and a Chaplain. 

Payment. Members of each House receive five dollars 
a day for the first sixty days, and two dollars a day dur- 
ing the remainder of the session. The purpose of this 
provision is to encourage expedition in Legislative ac- 
tion. It has not had this result, as the Legislature can 
consume the sixty days without taking up some of the 
most important matters requiring attention, and adjourn. 
The Governor will then call them into special session to 
attend to those matters which are imperative. Thus they 
receive the five dollars per day for ninety days. In 



252 Civil Government 

For the remainder of that ten years one-half of the Sena- 
tors are elected every two years. The terms of those 
chosen at the last election before the reapportionment is 
for only two years. This process is begun over after 
each apportionment. 

The functions of the Senate, apart from the House, 
are the confirmation of officers appointed by the Gover- 
nor, and the trial of all cases of impeachment on address 
presented by the House. 

Organization. The Lieutenant Governor presides over 
the Senate. He has a right to vote only in case of a 
tie. The Senate elects its other officers, the President 
pro tern, being chosen from its own members, and the 
others from persons not members. These other officers 
consist of a Secretary, an Assistant Secretary, a Journal 
Clerk, an Assistant Journal Clerk, a Calendar Clerk, an 
Enrolling Clerk, a Sergeant-at-Arms, an Assistant Ser- 
geant-at-Arms, a Doorkeeper, Assistant Doorkeeper, and 
a Chaplain. 

House of Representatives. The number of the members 
of the House is not fixed by the Constitution. The mini- 
mum number is 93 ; the maximum cannot exceed one Rep- 
resentative for every 15,000 inhabitants, nor can the num- 
ber be more than 150. There are now 109 districts, and 
133 members. 

The Representative Districts are determined by the 
Legislature, the State being so divided as to give one 
Representative to a designated number of inhabitants. 
This number is determined by the Legislature, but can- 
not be less than 15,000. 

The county is taken as the unit in this distribution of 
the Representatives as far as it may be conveniently 
done. If one county has approximately the number of 
inhabitants which entitle to a Representative, it is made 



Government of the States 253 

a Kepresentative District, and one member is elected from 
it. If a county has twice that number of inhabitants, 
is has two Representatives. If there are a number of 
contiguous counties, no one of which has the requisite 
number, they are combined into a district. If there are 
several counties, each of which has population more than 
sufficient to entitle it to one Eepresentative, but not 
enough for two, each is given a separate representative 
from it, and then all of them are combined into another 
district and another Representative is allowed from all 
of these counties. Such a Representative is frequently 
called a floater. 

A Representative must be twenty-one years of age, a 
citizen of the United States, a qualified voter, and must 
have lived in the State two years and in his district 
one year just preceding his election. The term of office 
is two years. 

Organization of the House. The House elects its own 
presiding officer, called a Speaker, from its own member- 
ship. It also selects its other officers. These officers are 
a Chief Clerk, a Calendar Clerk, a Journal Clerk and 
Assistant Journal Clerk, an Engrossing Clerk, an Enroll- 
ing Clerk, a Reading Clerk, a Postmaster, a Doorkeeper 
and a Chaplain. 

Payment. Members of each House receive five dollars 
a day for the first sixty days, and two dollars a day dur- 
ing the remainder of the session. The purpose of this 
provision is to encourage expedition in Legislative ac- 
tion. It has not had this result, as the Legislature can 
consume the sixty days without taking up some of the 
most important matters requiring attention, and adjourn. 
The Governor will then call them into special session to 
attend to those matters which are imperative. Thus they 
receive the five dollars per day for ninety days. In 



254 Civil Government 

addition to their per diem, members receive mileage, not 
to exceed twenty cents per mile, for coming to and re- 
turning from the Capitol. 

Proceedings in the Legislature. Article III of the Con- 
stitution provides: 

Sec. 29. The enacting clause of all laws shall be, "Be it enacted 
by the Legislature of the State of Texas." 

Sec. 30. No law shall be passed except by bill, and no bill shall 
be so amended in its passage through either House as to change 
its original purpose. 

Sec. 31. Bills may originate in either House, and when passed 
by such House may be amended, altered or rejected by the other. 

Sec. 32. No bill shall have the force of a law until it has been 
read on three several days in each House, and free discussion al- 
lowed thereon; but in cases of imperative public necessity (which 
necessity shall be stated in a preamble, or in the body of the 
bill ) , four-fifths of the house in which the bill may be pending may 
suspend this rule, the yeas and nays being taken on the question 
of suspension, and entered upon the journals. 

Sec. 33. All bills for raising revenue shall originate in the House 
of Representatives, but the Senate may amend or reject them as 
other bills. 

Sec. 34. After a bill has been considered and defeated by either 
House of the Legislature, no bill containing the same substance 
shall be passed into a law during the same session. After a reso- 
lution has been acted on and defeated, no resolution containing 
the same substance shall be considered at the same session. 

Sec. 35. No bill (except general appropriation bills, which may 
embrace the various subjects and accounts for and on account of 
which moneys" are appropriated) shall contain more than one sub- 
ject, which shall be expressed in its title. But if any subject shall 
be embraced in an act which shall not be expressed in the title, 
such act shall be void only as to so much thereof as shall not be 
so expressed. 

Sec. 36. No law shall be revived or amended by reference to its 
title; but in such case the act revived or the section or sections 
amended shall be re-enacted and published at length. 

Sec. 37. No bill shall be considered, unless it has been first 
referred to a committee and reported thereon; and no bill shall 



Government of the States 255 

be passed which has not been presented and referred to and re- 
ported from a committee at least three days before the final ad- 
journment of the Legislature. 

Sec. 38. The presiding officer of each House shall, in the pres- 
ence of the House over which he presides, sign all bills and joint 
resolutions passed by the Legislature, after their titles have been 
publicly read before signing; and the fact of signing shall be en- 
tered on the journals. 

Sec. 39. No law passed by the Legislature, except the general 
appropriation act, shall take effect or go into force until ninety 
days after the adjournment of the session at which it was enacted, 
unless, in case of an emergency, which emergency must be expressed 
in a preamble or in the body of the act, the Legislature shall, 
by vote of two-ithirds of all the members elected to each House, 
otherwise direct; said vote to be taken by yeas and nays, and 
entered upon the journals. 

Sec. 40. When the Legislature shall be convened in special ses- 
sion, there shall be no legislation upon subjects other than those 
designated in the proclamation of the Governor calling such session, 
or presented to them by the Governor; and no such session shall 
be of longer duration than thirty days. 

Sec. 41. In all elections by the Senate and House of Represen- 
tatives, jointly or separately, the vote shall be given viva voce, ex- 
cept in the election of their officers. 

These sections require little if any explanation. The 
general treatment on Legislative proceedings given in 
Chapter IV, studied in connection with them, will make 
them sufficiently clear. 

General Provisions Regarding the Legislature. As the 
States are not governments of enumerated powers, State 
Constitutions do not contain many specific grants of 
power to Legislatures. This is true of the Texas Con- 
stitution now under consideration. It has a large num- 
ber of sections under the head of requirements and lim- 
itations. Those sections falling under the first of these 
heads do not grant power, but specifically charge the 
Legislature to use in designated ways power already 



256 Civil Government 

possessed. These indicate State policy, but do not add 
to or take from the authority of the Legislature. 

Those sections coming under the head of limitations 
can be more satisfactorily treated under the general head 
of restrictive provisions. 

Restrictive Provisions. Many of the restrictions on the 
Legislature are contained in the Bill of Eights, and af- 
fect this Department no more than the others. Others 
relate to taxation and public debts and claims, and will 
be considered in connection with those subjects. Some 
of the others we will now present. 

Restrictions as to Local or Special Laws. Local laws 
are laws which affect only a particular place. Special 
laws affect only a particular person or a private mat- 
ter. By Section 56 of Article III the Legislature is for- 
bidden to pass local or special laws relating to a num- 
ber of subjects enumerated in the section. This enumera- 
tion requires twenty-nine subdivisions of the section to 
contain it. Its length, and the relative unimportance of 
the subjects, preclude its insertion or detailed treatment. 
It is well to remember that there is such a restrictive 
section, and to refer to it for information when the oc- 
casion arises. 

Section 57 regulates the manner of passing local or 
special laws in those cases in which this is permitted. 
It requires that before such a law shall be passed those 
interested in it shall publish the substance of the contem- 
plated law in a newspaper, in the locality to be affected 
by it, for at least thirty days before introduction of the 
bill in the Legislature. Proof of such publication must 
be made to the Legislature before it can act on the bill. 

The Legislature is expressly authorized to pass local 
laws for protection of game or fish, and with regard to 
fences and stock raising. It can also form local school 



Government of the States 257 

districts, even without giving the notice referred to above. 
By Section 56, Article XVI, the Legislature is for- 
bidden to use public money for the purpose of encourag- 
ing immigration. 

RECAPITULATION. 

The Legislative power of Texas embraces all political 
power not given over to the United States in the Act of 
Annexation. 

All this Legislative power is vested in the State Legis- 
lature, consisting of two Houses, the Senate and House of 
Representatives. 

The Legislature meets biennially, and oftener if called 
by the Governor. In its regular session it can legislate 
on any matter over which the State has jurisdiction; in 
called session only on such matters as are submitted to it 
by the Governor. 

Each House determines the election and qualifications 
of its own members, elects its own officers, and establishes 
its own rules of procedure. 

There are thirty-one Senators. The term is four years. 
They are divided so that one-half go out of office every 
two years. 

The only separate powers of the Senate are to try im- 
peachments and pass on appointments made by the Gov- 
ernor. 

The number of Representatives is not fixed absolutely. 
It cannot exceed 150. There are now 133. The term of 
office is two years. All revenue bills must originate in 
the House. 

There are many restrictive provisions in the Constitu- 
tion which affect the Legislature in connection with the 
other departments of the Government. These are treated 
in a subsequent chapter. 
17 



258 Civil Government 

The Legislature is forbidden to pass special or local 
laws except in cases where this power is expressly con- 
ferred. Notice of the introduction of such bills must be 
given in those cases in which they are permitted. 

QUESTIONS. 

I. 1. In what is the Legislative power of Texas vested? 2. 
To what subjects does this power extend? 3. Why is the lan- 
guage on this subject in the State Constitution different from 
that in the Federal? 

II. 1. Of what is the Legislature of the State of Texas com- 
posed? 2. What is the difference between a regular and a called 
session as to the matters on which each may legislate? 3. What 
different actions may each House take, without the concurrence 
of the other? 

III. 1. How many Senators are there? 2. What qualifica- 
tions must a Senator have? 3. How long do they serve, and what 
provision is made for classifying Senators so as to have the terms 
expire at different times? 4. What functions has the Senate in 
which the House does not share? 

IV. 1. What is the minimum and what the maximum number 
of Representatives? What is the present number? How are Legis- 
lative districts fixed? 2. What is the term of a Representative, 
and how are they chosen? 3. What are the qualifications of a 
Representative? 4. Who presides over the House? What other 
officers has it, and how are these selected? 

V. 1. What compensation do Legislators receive? 2. What is 
the purpose of diminishing the pay of Legislators after sixty days? 

3. How does this work out practically? 

VI. 1. Compare the Constitutional provisions copied from 
the Constitution with the general treatment of this subject in Chap- 
ter IV. 2. Outline simply the method of introducing and pass- 
ing a bill. 

VII. 1. Why does not the Texas Constitution contain an enum- 
eration of subjects on which the Legislature may act? 2. Why 
is it necessary to put restrictions on a State Legislature? 3. In 
what part of the Constitution are most of the restrictive provisions? 

4. What are the Constitutional provisions as to local legislation? 



Government of the States 259 

CHAPTER XXII. 

THE EXECUTIVE DEPARTMENT. 

Of Whom Composed. The Executive Department of 
the State of Texas consists of the following State officers : 
a Governor, a Lieutenant Governor, a Comptroller of 
Public Accounts, a Treasurer, a Commissioner of the Gen- 
eral Land Office, an Attorney General, a Superintendent 
of Public Instruction, who are elected by the people; 
and of a Secretary of State, a Commissioner of Insurance, 
Statistics and History, a Commissioner of Agriculture, 
an Adjutant General, two Commissioners of Pardons, a 
State Health Officer, a State Purchasing Agent, a Revenue 
Agent, and a Tax Commissioner, who are appointed by 
the Governor with the approval of the Senate. Besides 
these there are numerous boards and principals in charge 
of the different charitable institutions, and of the peni- 
tentiaries and reformatories. There are also numerous 
county officers in this department. 

Manner of Election. The term of all these officers is 
two years. Those who are chosen by the people are voted 
for at every biennial election. These votes are counted 
by the proper officers of election ; in the case of State offi- 
cers the returns are made to the Secretary of State, who 
retains them until the meeting of the Legislature in regu- 
lar biennial session. He then delivers them to the 
Speaker, who, during the first week of the session, opens 
and publishes them in the presence of both Houses. The 
person having the highest vote for each office is declared 
elected thereto. In case of a tie between two candidates 
for any office the Legislature immediately chooses one of 
them by a joint vote of both Houses. In case of a eon- 



260 Civil Government 

tested election for either of said offices it is decided by 
the Legislature in joint session. 

The Governor and Lieutenant Governor are inaugurated 
on the first Tuesday after the organization of the Legis- 
lature, or as soon thereafter as practicable. 

Vacancy in the office of Governor is filled by the ac- 
cession of the Lieutenant Governor to the office. In 
such event the President pro tern, of the Senate becomes 
Lieutenant Governor. Vacancies in any other of these 
offices are filled by appointment of the Governor, with 
the approval of the Senate. 

The Governor. The Governor must be at least thirty 
years of age, a citizen of the United States, and a resi- 
dent of Texas for at least five years immediately before 
his election. He receives four thousand dollars a year as 
salary, and has the use of the Governor's Mansion. He 
is required to give his whole time to the duties of his 
office, and is forbidden to engage in any other business 
or employment, public or private. He is Commander-in- 
Chief of the State Militia, except when it is called into 
the actual service of the United States Government. He 
is charged with the execution of all the laws of the 
State, the suppression of insurrection, the repelling of 
invasions, and the protection of the frontier. For these 
purposes he may call out the full force of the State 
Militia. 

It is his duty to send messages to the Legislature in- 
forming them of the condition of the State, and recom- 
mending such measures as he may deem expedient. He 
is particularly charged "with looking into the financial af- 
fairs of the Government, and with furnishing each regu- 
lar session of the Legislature with an estimate of the 
money needed for the ensuing two years. He is the rep- 
resentative of the State in its intercourse with the United 



Government of the States 261 

States, and with other States. He has the power to par- 
don, reprieve, or commute the punishment of all per- 
sons convicted of crime, except in case of treason or im- 
peachment. In cases of treason he can pardon only with 
the concurrence of the Senate. In the exercise of his 
pardoning powers he is assisted by two Commissioners 
called the Board of Pardons. 

He appoints all State officers not chosen by election, 
and fills all vacancies in State and district offices. All 
these appointments are subject to approval by the Senate. 

Veto Power. The Governor has the power to veto bills 
passed by the Legislature. This he must do by message 
sent to the House in which the bill originated, stating the 
fact of his disapproval and his reasons therefor. For 
this purpose he has ten days from the reception of the 
bill by him, if the Legislature continues in session that 
long. If the Legislature adjourns within ten days, he 
has twenty after the adjournment. He vetoes after ad- 
journment by filing his disapproval and the reasons there- 
for with the Secretary of State, and by having these 
published, within the said time. Failure to veto a bill 
in the manner applicable thereto is equivalent to ap- 
proval. In case a veto message is sent to the Legisla- 
ture the bill will nevertheless become a law if it is passed 
thereafter by a two-thirds vote of each House. 

Lieutenant Governor. The Lieutenant Governor pre- 
sides over the Senate. In the event of the death, resig- 
nation or impeachment of the Governor he succeeds to 
that office, must discharge all of its duties, and is entitled 
to all its emoluments. 

Comptroller of Public Accounts. The Comptroller is 
charged with the duty of keeping the accounts of the 
State with all persons having business transactions with 
it. It does not matter from what source the monev is 



262 Civil Government 

derived, if it belongs to the State and is handled by any 
State officer or other officer collecting for the State, the 
records of the Comptroller's office should show the fact 
of its receipt and disbursement. When money is due 
from the State, as shown by the records in his office, he 
draws a warrant upon the Treasurer for the amount due. 
If money is due the State, it is his business to see that it 
is paid. These business transactions are exceedingly 
voluminous and varied in their character, and the amount 
of work required in keeping all these different accounts 
keeps busy a large number of trained clerks and assist- 
ants. 

The Treasurer. The State Treasurer actually handles 
and has the custody of the State 's money. No money can 
lawfully be paid out of the Treasury unless it has first 
been appropriated by the Legislature to the purpose for 
which the payment is made, and unless the Comptroller 
has drawn his warrant on the Treasurer for the amount. 

Commissioner of the General Land Office. This office 
is the head of the Texas Land System. Some idea of 
the extent and importance of his official duties will ap- 
pear from a brief presentation of that system, and the 
methods of acquiring lands under it. This is given in 
Chapter XXVI. 

All of the various activities involved in carrying on 
this system are under the direct supervision of the Com- 
missioner of the General Land Office. He is provided with 
a reasonable number of competent assistants, who at- 
tend to the details of the work. His is one of the most 
important business departments of the State. 

The Attorney General. The Attorney General is the 
chief legal adviser of the State and its officers, from the 
Governor to the lowest official. 



Government of the States 263 

The section in the Constitution providing for this of- 
fice is as follows: 

Sec. 22. The iVttorney General shall hold his office for two years 
and until his successor is duly qualified. He shall represent the 
State in all suits and pleas in the Supreme Court of the State in 
which the State may be a party, and shall especially inquire into 
the charter rights of all private corporations, and, from time to 
time, in the name of the State, take such action in the courts as 
may be proper and necessary to prevent any private corporation 
from exercising any power, or demanding or collecting any species 
of taxes, toll, freight or wharfage not authorized by law. He shall, 
whenever sufficient cause exists, seek a judicial forfeiture of such 
charters, unless otherwise expressly directed by law, and give legal 
advice in writing to the Governor and other executive officers, when 
requested by them, and perform such other duties as may be re- 
quired by law. He shall reside at the seat of government during 
his continuance in office. He shall receive for his services an annual 
salary of two thousand dollars, and no more, besides such fees as 
may be prescribed by law; provided, that the fees which he may 
receive shall not amount to more than two thousand dollars an- 
nually. 

One man cannot possibly perform all these duties. The 
Legislature has from time to time passed laws authoriz- 
ing the employment of competent men to assist in their 
discharge. One is called the Assistant Attorney Gen- 
eral. He is appointed by the Governor, and repre- 
sents the State in all cases before the Court of Criminal 
Appeals. The others are appointed by the Attorney 
General, and take charge of such portions of the work 
of the Department as he assigns to them. 

The duty of giving legal advice to the heads of the 
departments and other executive officers is very onerous 
and delicate. When a statute is passed which is un- 
certain in its meaning the executive officer required to 
enforce it refers the difficulty to the Attorney General. 
He and his assistants consider the matter and give a 
written opinion to the officer as to the meaning of the 



264 Civil Government 

law. This opinion is not an authoritative decision, such 
as is rendered by a court, but is only legal advice from an 
attorney. The matter is still open to question and liti- 
gation. In the large majority of instances the opinions 
given are sustained. The number of opinions called for 
is increasing by new and somewhat experimental legis- 
lation. A great many new issues have arisen in late 
years, and the Legislature has been called upon to pre- 
vent new wrongs, and to give more efficient remedies for 
old ones. Litigation to which the State is a party has 
also greatly increased, and the demands upon the De- 
partment in this regard are very great. The position of 
Attorney General is a very important one. 

The Superintendent of Public Instruction. This officer 
is elected by the people of the State, holds office for two 
years, receives a salary of $2,500 per annum, and has 
charge of the public school system of the State. His 
duties are varied and exacting. They all pertain to 
educational matters, and will be more fully considered in 
connection with that subject, which is of sufficient im- 
portance to require separate treatment. 

The Secretary of State. This is the most important of 
the appointive State officers. It is made appointive be- 
cause its duties bring the incumbent into such close rela- 
tions with the Governor. He holds his office for two 
years. He is the custodian of the Seal of the State and 
the keeper of all records belonging to the office of the 
Chiqf Executive and the Legislative bodies, such as 
Journals of Constitutional Conventions, Houses of the 
Legislature, authoritative copies of all laws and resolu- 
tions passed by the Legislature, etc. He issues all proc- 
lamations by the Governor, receives all election returns 
for State and district officers, calls the House of Repre- 
sentatives to order on its first assembling, administers 



Government of the States 265 

the oath of office to its members, and delivers to its 
Speaker the election returns for State officers. He com- 
missions all State and district officers, and all notaries 
public, and receives and files the charters of all corpora- 
tions and collects the franchise tax upon them. Under 
recent legislation he is empowered to declare forfeiture 
of corporate rights for failure to pay this tax. He issues 
permits to foreign corporations, except those engaged in 
insurance, to do business within the State, and performs 
many similar duties. He is allowed a Chief Clerk, who 
in his absence discharges his duties, and a number of 
other assistants. 

Commissioner of Insurance, Statistics and History. The 
duties of this office, though somewhat incongruous, are 
of great consequence to the public. Among them is the 
supervision and control of all insurance companies do- 
ing business in the State. It is immaterial whether the 
insurance is fire, life, health, accident or fidelity, or 
whether the company be foreign or domestic, it falls 
within the jurisdiction of this Commissioner. It is his 
business to investigate the solvency and reliability of 
all companies, and to ascertain whether or not they are 
complying in all respects with the law in making required 
deposits, paying losses, etc. If they are, he grants them 
license upon payment of the legal fees; if they are not, 
he does not permit them to do business within the State. 
The experience of other States with companies organized 
for some of these purposes shows the wisdom of creating 
and maintaining this office. 

As Official Statistician he informs himself on all mat- 
ters of public interest and tabulates them so far as lie is 
able with the assistance allowed him. 

As Commissioner of History he has charge of all books, 
literature, and relics belonging to the State which per- 



268 Civil Government 

for the Deaf and Dumb, the State Orphanage, the State 
Colony for Epileptics, the Confederate Home, the State 
University, the Agricultural and Mechanical College, the 
State Reformatory and Penitentiaries, are managed by 
Boards appointed by the Governor. The managements 
differ in detail, but in practically all, except in case of 
the University and College, the Governor appoints the 
executive head. In these two the head is chosen by the 
Board in control. These Boards have the general manage- 
ment and supervision of the respective institutions under 
their charge. They determine under the general laws of 
the State the policy and scope of work of each, and ap- 
point those who are actually engaged in them. 

The State Tax Commissioner. It is the duty of this 
officer to be thoroughly informed as to all matters per- 
taining to taxation, to advise the State as to the best 
methods of raising revenue by taxation, and also to see 
that all persons and things within the State are properly 
assessed. He is especially charged with looking after 
taxes against or on corporations and their assets, tangible 
and intangible. He, the Secretary of State and Comptrol- 
ler constitute the State Intangible Tax Board, whose 
duty it is to equalize the tax assessments on railroads and 
the property of other corporations. 

Eailroad Commission. The Texas Railroad Commis- 
sioners are sometimes classed as executive officers, but 
their duties are so varied that it is difficult to determine 
to which Department they really belong. Consideration 
of them and their duties is deferred until the subject of 
railroads is taken up. s 

County Officers. There are numerous county officers 
who belong to the Executive Department. It is more 
convenient to consider them in other connections, and 
they are passed over here. 



Government of the States 269 

RECAPITULATION. 

The chief executive is the Governor. He is charged 
with the duty of executing all the laws of the State. 

Vacancies in the office of Governor are provided for 
by the election of a Lieutenant Governor, who takes the 
place whenever the Governor ceases to act. The Lieu- 
tenant Governor presides over the Senate. 

There are large numbers of other executive State of- 
ficers, some of them appointive and some elective. 

The Comptroller is the general bookkeeper for the 
State. He draws all warrants on the State Treasurer, and 
supervises the collection of all money due the State not 
expressly in charge of the head of some other department. 

The Treasurer has charge of all money, bonds and val- 
uable securities belonging to the State. He receives all 
money paid to the State, and pays it out on warrants 
from the Comptroller. 

The Commissioner of the Land Office is the head of the 
State Land Department. He attends to disposing of the 
public lands, both by sale and lease. He and the Gov- 
ernor sign all patents to land. 

The Attorney General is the legal adviser of all the 
executive officers of the State, and represents the State 
in all litigation in the higher courts. 

The Superintendent of Public Instruction is the head of 
the Public School System, and supervises all public 
schools in the State. 

The Secretary of State is the keeper of the records of 
the Governor's office and of the Legislature, and also 
has charge of the charters of all private corporations. 

The Commissioner of Insurance, Statistics and History 
looks after all insurance companies doing business in 
the State, and gathers such statistics as are beneficial 
to the public, and keeps all records of historical interest. 



270 Civil Government 

The Commissioner of Agriculture has charge of all 
matters specially pertaining to farming and stock in- 
terests. 

The Adjutant General is the Governor's Chief of Staff 
in military matters. 

The Commissioners of Pardons investigate all applica- 
tions for pardon, and recommend to the Governor the 
action they think he ought to take regarding them. 

The State Health Officer watches the health of the 
State, and has general control of quarantine and other 
matters of health and sanitation. 

The State Purchasing Agent buys the supplies needed 
by the State for its asylums and like institutions. 

The State Revenue Agent assists in the collection of 
money due the State, principally by getting information 
as to persons who are seeking to evade payment of li- 
censes. 

The State Tax Commissioner's duty is to make sug- 
gestions as to methods of taxation, and also to assist 
in making assessments on railroads. 

QUESTIONS. 

I. 1. Name the Executive State officers who are elected. 2. 
By whom are they elected? By whom is the vote for these counted? 
What is meant by a return of these votes ? 3. What State officer 
keeps these returns till the Legislature meets? What does he 
do with them, and who declares the result of the elections? 

II. 1. What are the qualifications for Governor? 2. Name his 
chief executive duties. 3. Name his duties in connection with 
legislation. Compare the provisions of the State Constitution 
on subject of veto with those of the Federal Constitution on that 
subject. Note the differences. \ 4. What are the duties of the Lieu- 
tenant Governor? 

III. 1. Give briefly the duties of each of the following of- 
ficers: Comptroller, Commissioner General Land Office, Attorney 
General and Superintendent of Public Instruction. 

IV. 1. Name the different State officers who are appointed by 
the Governor, and state briefly the duties of each. 



Government op the States 271 

CHAPTER XXIII. 
THE JUDICIAL DEPARTMENT. 

The Judicial power of this State shall be vested in one Supreme 
Court, in Courts of Civil Appeals, in a Court of Criminal Appeals, 
in District Courts, in Commissioners Courts, in Courts of Jus- 
tices of the Peace, and in such other courts as may be provided by 
law. The Criminal District Court of Galveston and Harris Coun- 
ties shall continue with the district, jurisdiction and organization 
now existing by law until otherwise provided by law. The Legis- 
lature may establish such other courts as it may deem necessary, 
and prescribe the jurisdiction and organization thereof, and may 
conform the jurisdiction of the district and other inferior courts 
thereto. Article V, Section 1, Constitution of Texas. 

This is the first section of the Judicial Article in our 
present Constitution. It names a number of courts 
upon which it confers all of the judicial power of the 
State. Then recognizing that the changes incident to 
the life and development of a people make frequent 
changes in their judicial systems desirable, and that such 
changes are difficult to make by Constitutional amend- 
ment, it confers upon the Legislature the power to create 
other courts if this should become necessary, and con- 
form the jurisdiction of the enumerated courts to such 
changes. 

This power has only been exercised by the creation of 
Corporation Courts for the larger cities, and as these do 
not have extensive jurisdiction they make little altera- 
tion in the judicial system announced in the Constitu- 
tion. 

It is more convenient in treating this system to reverse 
the order adopted in the Constitution, and to begin with 
the lowest courts. 

County Commissioners Court. In each county there 



272 Civil Government 

is a Commissioners Court. This is composed of the 
County Judge, who is its presiding officer, and four 
County Commissioners, each of whom is selected from 
a subdivision of the county known as the Commissioner 
Precinct. This tribunal, though called a court, really has 
but little judicial power. It is practically the board of 
directors for the county, having charge of all its busi- 
ness affairs. It provides all public buildings, supervises 
the laying out and maintaining of county roads, and 
manages the county poor farm and hospital. It levies 
all county taxes, makes settlements with all persons 
having business with the county, and fills vacancies in 
all county offices except that of District Clerk. It di- 
vides the county into justice, commissioner, and elec- 
tion precincts, appoints officers to hold elections, and at- 
tends to many other local matters. 

Justices Courts. Bach county in the State is divided 
by the Commissioners Court of the county into not 
less than four nor more than eight precincts. In each 
of these precincts there is a Justice Court, and every two 
years a Justice of the Peace and a Constable are elected 
to hold this court. If any precinct contains a city of 
eight thousand or more inhabitants, it is given two Jus- 
tices Courts, and two Justices are elected. The Justice 
of the Peace is the judge, and the Constable is the exec- 
utive officer of the Justice Court. This court holds a 
session every month for the trial of civil cases, at a place 
within the precinct selected by the Commissioners Court. 
It can try criminal cases at any time and in any place 
within the precinct. This court has jurisdiction over all 
civil cases in which the matters in litigation are two 
hundred dollars or less, not including interest, and which 
are not expressly placed in the jurisdiction of some other 
court. It has jurisdiction over criminal cases in which 



Government of the States 273 

the punishment is by fine only, and the fine can not ex- 
ceed two hundred dollars. A jury in a Justice Court con- 
sists of six men. Any party to a criminal case may have 
a jury on demand, and in a civil case on demand and 
payment of three dollars. Trials in the Justices Courts 
are informal, the pleadings being oral except in the very 
few instances enumerated in the statutes. The general 
rules of evidence apply to them. The Justice decides 
on the admission of evidence, but he does not charge 
the jury. The Justice keeps his own records. Cases 
tried in the Justices Courts can be appealed to the County 
Court if they involve as much as twenty dollars; other- 
wise the decision of the Justice Court is final. 

County Courts. In every organized county there is 
a County Court. It is a court of record, and holds its 
sessions at the county-seat, meeting at least every three 
months, and oftener if the Commissioners Court so orders. 
This court has extensive jurisdiction, both as a regular 
trial court and as a court of probate. 

In civil cases it has jurisdiction: 

(1) Over all cases for more than $200 and not over 
$500 of which the District Courts are not given exclu- 
sive jurisdiction. 

(2) It has concurrent jurisdiction with the District 
Courts of all suits of over $500 and not over $1000 of 
which the District Court is not given exclusive jurisdic- 
tion. v 

(3) It has power to issue all writs necessary to en- 
force its jurisdiction, and writs of mandamus and in- 
junction when they involve money values within the 
amounts stated in Sections 1 and- 2. 

It has jurisdiction over all criminal offenses which are 
not punishable by death or imprisonment in the peniten- 

18 



274 Civil Government 

tiary, or which do not involve wrong-doing by an officer 
in his official capacity. 

Probate Jurisdiction. It has jurisdiction over all pro- 
bate cases. These are proceedings in court for the pur- 
pose of preserving or distributing the estates of dead 
or insane persons, of minors, or of habitual drunkards. 
Under this power the County Court takes charge of such 
estates and appoints some suitable person to manage 
them under the supervision of the Court. Such person, 
in case of one deceased who left no will, is called an ad- 
ministrator. If there is a will, he is called an executor. 
If the estate is that of a living person, the party having 
charge is called a guardian. When necessary the Court 
can have such portions of such estates as are necessary 
sold to pay debts, or to support the minor or insane 
person. When the necessity for further action is passed, 
as when a minor becomes of age, or an insane person is 
restored, the estate is delivered to the owner. In case 
of a death of a property owner who leaves neither a will 
nor debts there is no need for the Probate Court to take 
charge of the estate. His heirs divide it among them- 
selves. If, however, the deceased owed debts but leaves 
no will, then the Probate Court takes charge of the es- 
tate in order to protect the rights of both the creditors 
and of the family. In this case it will first provide rea- 
sonably for the family, then use enough of the property, 
if there be so much, to pay all debts, and then divide 
what is left among the members of the family according 
to the laws governing heirship. If the deceased leaves 
a will, it must be proved up and recognized by the Court. 
It is then placed on record, and the estate is managed 
by the one named in the will for that purpose, who is 
called an executor. All debts must be paid, and then the 
property is disposed of as the will directs. 



Government of the States 275 

Appellate Jurisdiction of County Courts. These Courts 
have appellate jurisdiction over all cases tried in the 
Justice Courts which involve twenty dollars or over. 
Cases brought into Court in this way are tried very in- 
formally, much as they were in the Justice Court. The 
decision of the County Court is final unless the amount 
involved is as much as one hundred dollars. 

Officers of the County Court. The officers composing 
the County Court are the County Judge, the County 
Clerk, the Sheriff, and Jurors when they are in attend- 
ance. The County Judge must be a qualified voter, "well 
informed in the law of the State." He is elected by the 
voters of the county, holds his office for two years, and 
receives fees for his services. He is the presiding officer 
of the County Court and of the Commissioners Court of 
his county. The County Clerk issues all processes from 
the Court, and keeps all its records. He is elected by the 
voters of the county, holds office for two years, and is 
paid in fees. 

Appeals From the County Court. All cases tried in 
the County Court in the exercise of its original jurisdic- 
tion, and those appealed from the Justice Court which 
involve as much as one hundred dollars, may be appealed.. 
In civil cases the appeal goes to the Court of Civil Ap- 
peals, and in criminal cases to the Court of Criminal Ap- 
peals. All appeals in probate matters go to the District 
Court of the county. 

District Courts. These are the most important trial 
courts in the system. They try all land suits, all divorce 
cases, all damage suits for slander or libel, all ordinary 
cases in which the amount in controversy is over $1000. 
all trials of rights of property where it is valued at $500 
or over, all suits by the State for penalties, forfeitures 
or escheat, and all cases of contested election. They 



276 Civil Government 

have concurrent jurisdiction with the County Court in 
all civil suits where the amount is over $500 and not over 
$1000. They can issue writs of all kinds in all cases 
except writs of mandamus against heads of the State de- 
partments, and also with the possible exception of writs of 
mandamus and injunction where the amount involved is 
over $200 and not over $500. Some of the Courts of Civil 
Appeals have held that the jurisdiction of the County 
Courts is exclusive in cases last named. In criminal cases 
they have jurisdiction over all crimes which may be pun- 
ished by death or confinement in the penitentiary, or 
which involve official misconduct. The Constitution, after 
mentioning all the foregoing matters, then declares that 
the District Courts are courts of general jurisdiction, and 
may try any and all suits jurisdiction over which is not 
expressly given to some other court. 

Appellate Jurisdiction of District Courts. These 
Courts have very little appellate jurisdiction. It is lim- 
ited to appeals from the County Courts in probate mat- 
ters, and to one or possibly two matters pertaining to lay- 
ing out roads by the County Commissioners Court. 

Appeals From the District Courts. All cases tried in 
the District Courts may be appealed. In civil cases the 
appeal is to the Court of Civil Appeals, and in criminal 
to the Court of Criminal Appeals. 

Terms of District Courts. The Constitution requires 
that a session of a District Court shall be held at the 
county-seat of every organized county in the State at 
least twice each year. The Legislature may provide for 
as many District Courts in a county and the holding of 
as many sessions as the public interests may require. 
There are statutes as to holding special terms of court 
which we need not consider. 

Judicial Districts. District courts are held and pre- 



Government of the States 277 

sided over by District Judges. For convenience the State 
is divided into different judicial districts, in each of 
which a District Judge is elected. These districts are 
made by the Legislature, and are usually formed by com- 
bining a number of counties. Sometimes a single county 
will have sufficient business to occupy the whole time 
of a judge, and will constitute a district by itself. In a 
number of the larger counties one judge cannot attend 
to all such business, so that two or more District Courts 
are provided in each. For such cases there are a number 
of terms a year of such courts in each county. There are 
now 69, and the number is constantly added to as the 
population of the State increases and its business de- 
velopes. 

District Judges. There must be a District Judge for 
each district. He must be at least twenty-five years of 
age, a lawyer or judge, and a citizen of Texas, and must 
have resided in the district for two years next preceding 
his election. He is elected by the qualified voters of 
his district, holds office for four years, and receives a 
salary of $3000 per year. He must reside in the dis- 
trict while he holds the office. Vacancies in the office 
are filled by appointment by the Governor with the ap- 
proval of the Senate. 

County Attorneys. In each county in the State a 
County Attorney is elected at each general election. His 
duty is to represent the State in all criminal eases in the 
county court, and in such of the justice courts as he can 
attend. In those districts in which there is no district 
attorney he also represents the State in the district court 
of his county. He is the legal adviser of the other 
county officers. Under some of the anti-trust statutes 
he is authorized to bring suits for penalties against cor- 



278 Civil Government 

porations supposed to have violated the law. He has no 
salary, but is paid by fees of office. 

District Attorney. In a number of the judicial dis- 
tricts there is elected a District Attorney. His duty is 
to represent the State in all cases, criminal or civil, to 
which the State is a party in any of the district courts 
of his district, unless the law expressly makes it the duty 
of the Attorney General of the State or of the County 
Attorney to do so. He receives a small salary to cover 
traveling expenses, and also fees of office. 

District Clerk. Bach district court has a clerk called 
the District Clerk. He is elected by the voters of the 
county, holds his office for two years, and is paid by 
fees collected from persons having litigation in his court. 
He issues all the written orders of the court. These are 
called processes. He keeps a written minute of all that 
is done by the court, entering particularly all orders and 
judgments. He attends to drawing jurors, and admin- 
isters oaths to the jury, witnesses, and others. 

The Sheriff. The executive officers of the district 
courts are the Sheriff and his deputies and bailiffs. The 
Sheriff is elected by the people of the county, holds his 
office for two years, and is the head of all the executive 
officers of the county. He carries out all orders of the 
court, serves all processes, arresting criminals, citing par- 
ties to suits, and summoning all jurors and witnesses. 
He cares for and attends all juries while hearing cases, 
preserves order in the court and its neighborhood, and 
keeps the county jail. He is authorized to appoint depu- 
ties, who assist him in the performance of these duties. 
Bailiffs are special officers appointed by the judge to at- 
tend the court and wait upon it. 

Indictments and Informations. In Texas no one can 
be tried for a felony until he has been indicted by a 



Government of the States 279 

grand jury. A felony is a criminal offense punishable by 
death or confinement in the penitentiary. Misdemeanors 
are offenses which are not felonies, and may be prose- 
cuted either on indictment or on information. An in- 
dictment can be presented only by a grand jury. An in- 
formation may be filed either by a district attorney or 
a county attorney. It must be based on an affidavit made 
by some credible person, charging the defendant with 
the crime alleged in the information. 

Grand Juries and the Manner of Presenting Indict- 
ments. A Grand Jury is a body of men selected and 
organized by a district court for the purpose of inquir- 
ing into all alleged violations of the criminal law within 
the county. They consist of twelve qualified voters of 
good character, who own land within the State. Their 
sessions are secret, except that the district or county 
attorney may be present while they examine witnesses. 
After the evidence as to any accusation is all heard, the 
Grand Jury votes on the charge; and, if nine concur in 
the guilt of the accused, an indictment charging him 
with the offense is prepared by the prosecuting attorney 
and signed by the foreman of the jury. The grand jury 
then goes into open court and presents the indictment to 
the judge. It is filed by the clerk, who then issues a 
warrant to arrest the accused. Grand juries may indict 
persons for either felonies or misdemeanors. If an in- 
dictment is returned charging a misdemeanor over which 
the county court has jurisdiction, the district judge or- 
ders the district clerk to send the indictment to the 
county court, where it is filed and the defendant tried. 

Procedure in the District and County Courts. All 
pleadings in civil suits must be in writing. In criminal 
cases the accusation must be made by information or 
by indictment. The production and hearing of all testi- 



280 Civil Government 

mony is regulated by the general rules of evidence. The 
judge decides all legal questions, and in civil cases also 
tries the facts, unless a jury is demanded and the fee 
paid. If there is a jury, he supervises its selection and 
gives to it in his charge the law of the case. 

After the jury has heard the pleadings, the evidence, 
the argument of the attorneys, and the charge of the 
court, they retire to consider their verdict. They are 
kept from association with others while doing this. The 
verdict must be unanimous and reduced to writing. It 
is brought by the jury into open court, and read by the 
clerk. If it is regular, it is then entered upon record, 
and judgment rendered upon it. If it is irregular, the 
judge calls the jury's attention to the irregularity and 
they can correct it there, or can retire again and con- 
sider the case further. If the jury cannot agree after 
reasonable effort, they are discharged, and the case is 
tried again before another jury. 

New Trials. When any case has been tried in any of 
the trial courts the losing party can make a motion for 
a new trial in that court. He must give his reasons for so 
doing in writing. The motion can be argued by the 
lawyers. If the judge thinks that a mistake has been 
made in the former trial, he can set the whole judgment 
aside, and retry the case. If he does not believe that the 
motion for a new trial should be granted, he overrules 
it, but the losing party usually can take the case to an 
appellate court. 

Attorneys and Their Part in Trying Cases. The at- 
torneys in a case prepare and file all pleadings, read 
them to the court, and argue all questions of law which 
arise on them. They introduce all evidence, question all 
witnesses, make objection to evidence offered by the op- 
posing counsel, and argue the facts to the jury after the 



Government of the States 281 

evidence is all in. They prepare the judgment when the 
verdict is returned, make all motions in the case, and 
decide whether or not it shall be appealed, and if it is 
appealed they give proper notice of that fact and prepare 
the record and take out the transcript. 

Preparation of a Case Upon Appeal When a case is 
appealed it is the duty of the lawyer of the party tak- 
ing the appeal to prepare and file with the clerk of the 
trial court a proper appeal bond, and an assignment of 
error setting out clearly the errors which he thinks the 
trial court has committed. The clerk then copies all the 
important papers on file in the case and the important or- 
ders and judgment made in it. This copy is called a 
transcript, and is delivered to the lawyer taking up the 
case, who files it in the appellate court. All subsequent 
proceedings in that trial are in the appellate court. 

Courts of Civil Appeals. The State is now divided 
into six Supreme Judicial Districts, in each of which 
there is a Court of Civil Appeals. One of these courts 
sits annually at each of the following places: Galves- 
ton, Dallas, Fort Worth, Austin, San Antonio, and Texar- 
kana. Each term begins the first Monday in October, 
and ends the last Saturday in June. Each court is com- 
posed of a Chief Justice and two Associate Justices. 
These Justices must be citizens of Texas, at least thirty 
years of age, and must have practiced law or been a 
judge of court for at least seven years before election. 
They are elected by the voters of their respective dis- 
tricts, hold office for six years, and receive a salary of 
$3500 per year. 

These courts have no original jurisdiction of any kind, 
and no criminal jurisdiction. They can try only civil 
cases appealed from the district or county courts. In 
all appeals coming from county courts, and from district 



282 Civil Government 

courts when the cases could have been tried in a county 
court, and in a number of other cases, the decisions of 
the Courts of Civil Appeals are final on both the law 
and the facts. Their decisions on questions of fact are 
final in all cases on which they pass. 

Procedure in Courts of Civil Appeals, Cases are 
brought into this Court by filing in it the transcript of the 
record of the proceedings in the lower court. This tran- 
script must be filed within ninety days after the appeal is 
perfected. When the transcript is received the clerk en- 
ters the case on the docket of the court in its regular 
order. The appellant, that is, the party taking the ap- 
peal, must prepare a brief of his case and file one copy 
in the lower court and at least three copies in the Court 
of Appeals. This brief consists of a short statement of 
the nature of the suit, of what took place in the trial 
in the lower court, and of the errors assigned. It fur- 
ther states the points of law on which the appellant re- 
lies to prove that error has been made, and under each 
point sets out the facts showing that the point actually 
arose and was decided against the appellant and that 
he did what he could to prevent the error. This state- 
ment is followed by a reference to the legal authorities 
— law books of different kinds — by which he hopes to 
sustain his point. The lawyer may also print his argu- 
ment in his brief. Within a certain time after this brief 
by the appellant is filed the counsel for the other party, 
called the appellee, files a brief on his side. This is sim- 
ilar to the one for the appellant, except that in it the 
appellee tries to show that there was no error commit- 
ted in the lower court. At the first meeting of the Court 
for the submission of cases after the time for filing briefs 
the case may be called and submitted to the Court for its 
decision either on the briefs filed, or on oral argument by 



Government of the States 283 

the attorneys in addition. No oral argument is permit- 
ted unless a brief has been filed. After the argument 
the court takes the ease under advisement. The judges 
examine the transcript, the brief, and the authorities, 
consult over the points in the case, and come to a de- 
cision, with the reasons for it, and a judgment is en- 
tered accordingly. This judgment may dismiss the case 
for want of jurisdiction, may dismiss the appeal for 
good cause, may affirm the judgment of the trial court, 
or may set aside the judgment, and enter such judgment 
as the lower court should have done, or it may set aside 
the judgment and send the case back for a new trial in 
the lower court. 

The party losing the case can make a motion for re- 
hearing, accompanying it with a written argument; but 
no oral argument is made on such a motion unless re- 
quested by the Court. If the re-hearing is denied, in 
many cases a writ of error may be applied for to the 
Supreme Court. 

The Supreme Court. There is one Supreme Court in 
Texas. It is composed of three judges, one called the 
Chief Justice, and the other two Associate Justices. 
These judges have the same qualifications as those for 
judges of the Courts of Civil Appeals, which have just 
been given. They are elected by the voters of the State, 
hold office for six years, and receive a salary of $4000 
per annum. The Court sits in Austin. Its sessions begin 
the first Monday in October of each year, and close the 
last Saturday in June of the succeeding year. 

It is the highest State court in civil cases, but has no 
criminal jurisdiction. It has original jurisdiction to grant 
writs of mandamus and quo warranto to all State and 
district officers, except to the Governor. Its appellate 
jurisdiction is confined to designated classes of cases 



284 Civil Government 

which have been appealed to the Courts of Civil Appeals, 
and to questions arising in the Court of Appeals which 
are sent to it for answer. 

Procedure in Supreme Court. Cases are not carried 
from the Court of Civil Appeals to the Supreme Court by 
appeal as matter of right. They can only be taken up 
by a writ of error granted by the Supreme Court upon 
examination of the case. The person decided against by 
the Court of Civil Appeals applies to the Supreme Court 
for a writ of error, setting out in his application the 
points upon which he thinks errors have been committed 
against him, and the reasons for his belief. The record 
is then sent up to the Supreme Court and, if the judges 
think that there is reasonable ground to believe that 
there has been error committed, they grant the writ of 
error and have the case brought up for revision. 

After the case comes before the Court it is tried very 
much as in the Court of Civil Appeals. 

This Court also has power to make rules for govern- 
ing the procedure in it, and in all other courts of Texas. 
It has done this from time to time, and the simplicity 
and excellence of the Texas practice is due largely to this 
fact. 

Court of Criminal Appeals. The Court of Criminal 
Appeals is the highest State court in criminal matters. 
It consists of three judges having the same qualifications, 
selected in the same way, holding office for the same 
time, and receiving the same salary as judges of the 
Supreme Court. This court holds sessions at three 
places: Tyler, Dallas, and Austin. It has no original 
and no civil jurisdiction. It hears appeals in criminal 
cases tried in the district and county courts. Its proced- 
ure is the same as in the Supreme Court. 

Examining Trials. All justices of the peace and 



Government of the States 285 

county and district judges are authorized to act as 
magistrates and to hold examining trials. These are not 
final trials to determine the actual guilt or innocence 
of a person accused of crime, but preliminary hearings 
to ascertain whether or not there is probable reason to 
believe that the person under arrest is guilty. If so, 
they either hold him in confinement, or make him give 
bond so as to compel him to come before the proper 
court and stand trial on indictment or information, if 
one shall thereafter be preferred against him. As a rule 
no one can be compelled to submit to arrest and examina- 
tion until a complaint has been made against him, in writ- 
ing, and under oath, charging that the complainant has 
good reason to believe that the accused is guilty of a 
designated criminal offense. When such complaint is 
made the magistrate issues an order to the sheriff com- 
manding him to arrest the accused and bring him before 
the magistrate at a time and place named. The trial is 
held by the magistrate without a jury. The accused 
is permitted, though not required, to make a written 
statement regarding the charge. Then witnesses are ex- 
amined and their testimony is reduced to writing, signed 
by them, and filed by the magistrate. The State and the 
accused are each represented by attorneys. After the 
evidence is all received, and the arguments are heard, 
the magistrate announces his decision. If he thinks the 
testimony shows the probable guilt of the accused, he 
makes an order committing him to jail, or admitting 
his release on giving of security for his appearance, as 
the nature of the case may require. 

All the papers in the case are then sent to the proper 
officer to be given to the next grand jury, and that body 
takes up the matter. If it finds an indictment, the ac- 
cused must appear at the proper court and stand trial 



288 Civil Government 

on it. If he does not so appear, his bond is forfeited. 
If the grand jury does not present an indictment, the 
accused is discharged from attendance on the court. He 
may, however, be indicted at any other time, and be ar- 
rested again, for he has not been in jeopardy in the 
legal meaning of that term. 

General Provisions. No judge in any court can sit in 
the trial of any case to which he or any one closely re- 
lated to him is a party, or in which any matter as to 
which he has been employed as an attorney by either of 
the parties is directly involved. All judges are con- 
servators of the peace. Judges of district and county 
courts and justices of the peace may act as committing 
magistrates. 

RECAPITULATION. 

The Judicial system of Texas consists of County Com- 
missioners Courts, Justice Courts, County Courts, Dis- 
trict Courts, Courts of Civil Appeals, a Supreme Court 
and a Court of Criminal Appeals, provided for in the 
Constitution. 

The Legislature is authorized to make other courts, 
and to change the jurisdiction of the trial courts pro- 
vided by the Constitution so as to conform to the new 
courts made by it. 

The Commissioners Court is more of a business board 
for managing county affairs than a tribunal to try cases. 
It has four members, called County Commissioners, and 
is presided over by the County Judge. 

The Justice Court is the lowest trial court. It hears 
small cases not involving more than $200. There must 
be four in each county, and may be eight. They are held 
by Justices of the Peace. 

The County Court is next in order above the Justices. 
They try civil cases of over $200 and not over $1000, 



Government of the States 287 

which are not expressly given to some other court. They 
try misdemeanors which do not involve official miscon- 
duct. They can grant writs of all kinds when necessary 
in a case already before them, and writs of injunction 
and mandamus where the amount involved is over $200 
and not over $1,000. This court attends to all probate 
matters. 

There is a County Court in each county. It holds at 
least four sessions each year. It is presided over by the 
County Judge, and attended by the County Attorney, 
the Sheriff, and County Clerk, jurors and lawyers. 

The District Court is the highest court of original juris- 
diction. It tries all land suits, divorce cases, and civil cases 
for defamation, contested elections, and suits by the State 
for forfeitures and penalties, and all other cases juris- 
diction over which is not expressly given to some other 
court. It tries all felony cases, and all misdemeanors in- 
volving official misconduct. It hears appeals from the 
County Courts in probate matters. 

The State is divided into a convenient number of dis- 
tricts, in each of which a district judge is elected. He 
holds at least two terms of his court each year at the 
county-seat of each county. The other officers of the 
court are the District or County Attorney, the Sheriff, 
the District Clerk, the Grand and Petit Jurors, and the 
lawyers. 

The procedure in the County and District Courts is 
the same. The judge decides questions of law, and the 
jury, in criminal cases and where one is demanded in civil 
cases, questions of fact. In the trial of a case the plead- 
ings are read, then the evidence is introduced, then the 
lawyers make their arguments. If there is no jury the 
judge then decides the case. If there is a jury, the judge 
gives them the law of the case in a charge and they find 



288 Civil Government 

their verdict. The verdict is entered of record and judg- 
ment entered on it. The losing party may move for new 
trial, and if that is denied, can appeal. 

All felonies must- be tried on indictment. An indict- 
ment is presented by a grand jury. Misdemeanors may 
be prosecuted by indictment or information. 

The Courts of Civil Appeals have no original jurisdic- 
tion. They hear appeals from the county and district 
courts in civil cases. Many cases cannot be carried be- 
yond this; others can. Their decisions are final on all 
matters of fact. There are six such courts sitting at dif- 
ferent places. 

The Supreme Court is the highest court in civil cases. 
It has a small share of original jurisdiction, but most 
of the cases it can hear come to it by writs of error from 
the Courts of Civil Appeals. Its most important func- 
tion is to insure uniformity of decision on questions of 
civil law, and so give certainty and consistency to the law. 

The Court of Criminal Appeals is the highest tribunal 
in criminal cases. It has no original or civil jurisdic- 
tion. It hears all appeals in criminal cases from the dis- 
trict and county courts. 

QUESTIONS. 

I. 1. What is the Judicial power of a State? 2. In whom is 
the Judicial power of Texas vested? 3. What is the jurisdiction 
of a court? 4. Can the Legislature change in any way the juris- 
diction of the several courts created by the Constitution? 

II. 1. What are County Commissioners Courts? Of whom are 
they composed, and over what matters do they have jurisdiction? 
2. Answer same as to Justice Courts. 

III. 1. How many County Courts are there in Texas? When 
and how often do such courts hold their sessions? 2. Name its 
civil jurisdiction. 3. Its criminal jurisdiction. 4. What is 
meant by probate jurisdiction? 5. What is its appellate juris- 
diction? 6. WTiat officers compose the County Court? 



Government of the States 289 

IV. 1. State the civil, the criminal, and the appellate juris- 
diction of the District Courts? 2. To what courts do appeals 
from the District Courts go in civil cases? In criminal cases? 3. 
Where and how often must District Courts be held in each county? 
4. Who presides over these courts? What are their qualifica- 
tions, and how are they elected? 

V. 1. Give briefly the duties of each of the following officers: 
County Attorneys, District Attorneys, District Clerks, and Sheriffs. 
2. What is a grand jury, and what are its duties? What is an 
indictment? What is an information? What kind of officers must 
be prosecuted by indictment? What may be prosecuted either by 
indictment or information? 

VI. 1. State briefly the procedure in the trial of a case in 
a county or district court. 2. When a new trial is refused what 
can the losing party do? 

VII. 1. Who are attorneys? What part do they take in try- 
ing cases? 2. What is necessary to prepare a case for appeal 
from a District Court to a Court of Civil Appeals? 

VIII. 1. Who constitutes a Court of Civil Appeals? How 
many such courts in Texas? What is their jurisdiction? In 
what cases are their decisions final? 2. Outline the procedure 
in these courts. 

IX. I. How many Supreme Courts in Texas? Of whom does 
it consist? When does it sit? What original jurisdiction has it? 
What appellate jurisdiction? 2. How are cases carried to this 
Court from the Court of Civil Appeals? How does the procedure 
in this Court compare with that in the Courts of Civil Appeals? 

X. 1. How many Courts of Criminal Appeals are there? Of 
what does it consist? What jurisdiction has it? When does it 
sit? 2. Give briefly the purpose and manner of conducting exam- 
ining trials. 

CHAPTER XXIV. 

RESTRICTIVE PROVISIONS OP THE CONSTITU- 
TION OF TEXAS. 

General Statement. In addition to the restrictive pro- 
visions of the Texas Constitution already considered in 

19 



290 Civil Government 

connection with other topics, there are several which are. 
too important to omit. 

The following sections of the Bill of Eights are re- 
strictions upon the State Government in all its depart- 
ments and guarantees of the rights referred to therein 
to every citizen or inhabitant of the State. 

The treatment given to similar provisions in the Fed- 
eral Constitution in connection with the general doc- 
trines announced in Part One make the general purposes 
and effect of these provisions readily apparent. A tech- 
nical treatment of them would be manifestly inappro- 
priate here. 

Their importance must not be overlooked, however, for 
they set out a number of the most fundamental doctrines 
upon which our whole system of government and our 
personal liberties rest. 

Liberty of Speech. The Bill of Rights provides : 

Sec. 8. Every person shall be at liberty to speak, write or pub- 
lish his opinions on any subject, being responsible for the abuse 
of that privilege ; and no law shall ever be passed curtailing the 
liberty of speech or of the press. In prosecutions for the publi- 
cation of papers investigating the conduct of officers or men in 
public capacity, or when the matter published is proper for public 
information, the truth thereof may be given in evidence. And in 
all indictments for libels the jury shall have the right to determine 
the law and the facts, under the direction of the court, as in other 
cases. 

As before stated, provisions of this sort do not give 
license, but guarantee liberty of speech. To indulge in 
license is to do as one himself desires; to enjoy liberty 
is to do that which proper regard for the equal rights 
of others permits. A government cannot abridge liberty 
of speech, but it is one of its sacred duties to prohibit 
license of speech. Every man is justly entitled to a repu- 
tation equal to his character. It is as much the duty of 



Government of the States 291 

the government to protect him in this right as in any 
other which he possesses. Laws which forbid the making 
of false and defamatory statements concerning others 
or their rights do not curtail liberty of speech. 

Article I. Sec. 9. The people shall be secure in their persons, 
houses, papers, and possession from all unreasonable seizures or 
searches, and no warrant to search any place, or to seize any per- 
son or thing, shall issue without describing them as near as may 
be, nor without probable cause, supported by oath or affirmation. 

It is highly important that the security of the persons, 
houses, papers and possessions of private individuals 
shall be respected and left unmolested, unless public in- 
terests require some interference. This section is in- 
tended to prevent reckless and unnecessary seizures of 
one's person and property, or. prying into his private af- 
fairs. 

Sec. 10. In all criminal prosecutions the accused shall have a 
speedy public trial by an impartial jury. He shall have the right 
to demand the nature and cause of the accusation against him, 
and to have a copy thereof. He shall not be compelled to give 
evidence against himself. He shall have the right of being heard 
by himself or counsel, or both; shall be confronted with the wit- 
nesses against him, and shall have compulsory process for obtain- 
ing witnesses in his favor. And no person shall be held to answer 
for a criminal offense, unless on indictment of a grand jury, ex- 
cept in cases in which the punishment is by fine, or imprisonment 
otherwise than in the penitentiary, in cases of impeachment, and 
in cases arising in the army and navy, or in the militia when in 
actual service in time of war or public danger. 

This guarantees a speedy and public trial by a jury, 
in which the accused shall be informed as to the charge 
against him. If the case be a felony, the charge must be 
by indictment. If it is a misdemeanor, or an impeach- 
ment, or prosecution under military law, it may be by 
information of the kind prescribed by law in this par- 
ticular case. In the trial he cannot be made to give evi- 
dence against himself; he may present his own ease or 



292 Civil Government 

be heard by counsel, or both; he shall be present when- 
ever evidence is given against him, and shall have the 
process of the court to enable him to compel the attend- 
ance of his witnesses. 

Sec. 11. All prisoners shall be bailable by sufficient sureties, 
unless for capital offenses when the proof is evident; but this pro- 
vision shall not be so construed as to prevent bail after indictment 
found, upon examination of the evidence in such manner as may 
be prescribed by law. 

Bail is security given by one accused of crime to as- 
sure his presence at the time and place of trial. It en- 
titles the accused to be at liberty before the case is tried, 
and is intended to guarantee that he will come to the 
trial. These provisions entitle every one accused of 
crime to give such security in a reasonable sum, unless 
the charge is one punishable by death and the proof is 
strong. 

Sec. 12. The writ of habeas corpus is a writ of right, and shall 
never be suspended. The Legislature shall enact laws to render 
the remedy speedy and effectual. 

Habeas Corpus here means the same as in the Federal 
Constitution, and in connection with which it has been 
explained. This provision is much stronger than the 
similar one in the United States Constitution. It denies 
to all officers the right to suspend the writ, and requires 
speedy legislation to make it effective. 

Sec. 14. No person, for the same offense, shall be twice put 
in jeopardy of life or liberty; nor shall a person be again put 
upon trial for the same offense after a verdict of not guilty in 
a court of competent jurisdiction. 

This provision as to jeopardy is substantially the same 
as in the Federal Constitution. The second clause is a 
more emphatic statement as to acquittals and their ef- 
fect. 

Sec. 15. The right of trial by jury shall remain inviolate. The 



Government of the States 293 

Legislature shall pass such laws as may be needed to regulate the 
same, and to maintain its purity and efficiency. 

This, in connection with the first sentence in See. 10, 
supra, guarantees the right of trial by jury in any case 
in any court if either party shall so desire. A jury is a 
body of disinterested men who decide the facts of a case 
on the evidence, under the rules of law governing it. 
The Legislature can regulate such trials, and have done 
so. They can in civil cases require the parties to do cer- 
tain reasonable things before they can have a jury trial, 
such as making demand at a designated time and paying 
a reasonable amount of money, the expenses of the jury, 
or making affidavits of inability to do so. In criminal 
cases the accused is entitled to a jury whether he can 
pay or not, and in felony cases he cannot even waive 
having one. 

Sec. 16. No bill of attainder, ex post facto law, retroactive law, 
or any law impairing the obligation of contracts, shall be made. 

Bills of attainder and ex post facto laws have been ex- 
plained. A law impairing the obligation of a contract is 
one which makes the contract non-enforcible. or so 
changes the remedy for its breach as to take away rea- 
sonable means of enforcement. Laws having either of 
these effects are forbidden by this section. 

Sec. 17. No person's property shall be taken, damaged, or de- 
stroyed for or applied to public use without adequate compensation 
being made unless by the consent of such person; and, when taken, 
except for the use of the State, such compensation shall be first 
made or secured by a deposit of money; and no irrevocable or un- 
controllable grant of special privileges or immunities shall be made: 
but all privileges and franchises granted by the Legislature, or 
created under its authority, shall be subject to the control thereof. 

The first of this section protects the citizen against im- 
proper use of the power of eminent domain. The last 
portion will be considered in connection with Section 26. 



294 Civil Government 

No person shall ever be imprisoned for debt. — Sec. 18, Bill of 
Rights. 

This is a decided change from the old common law, 
and differs from the law in a number of States. It has 
been the law in Texas from the days of the Kepublic. 

Sections 19, 20 and 21 are closely related. They are 
as follows : 

Sec. 19. No citizen of this State shall be deprived of life, liberty, 
property, privileges or immunities, or in any manner disfranchised, 
except by the due course of the law of the land. 

Sec. 20. No citizen shall be outlawed; nor shall any person be 
transported out of the State for any offense committed within the 
same. 

Sec. 21. No conviction shall work corruption of blood, or for- 
feiture of estate; and the estates of those who destroy their own 
lives shall descend or vest as in case of natural death. 

Section 19 requires due process of law, which has been 
explained. Outlawry is placing a person outside the pro- 
tection of the law, so he cannot have or assert legal 
rights. Transportation is banishment; sending a person 
out of the country and requiring him to stay away, or 
sending him to some penal colony outside the State. Cor- 
ruption of blood is a punishment which forfeits the prop- 
erty of the criminal to the public and renders his heirs 
incapable of inheriting from him. Forfeiture of estate is 
taking specific property or estate as a punishment for 
crime. 

Bearing Arms, Section 23 Bill of Rights, provides : 

Every citizen shall have the right to keep and bear arms in the 
lawful defense of himself or the State; but the Legislature shall 
have power by law to regulate the wearing of arms with a view 
to prevent crime. 

This is a fundamental right. If the government could 
maintain a standing army, and private citizens were de- 
nied the privilege of keeping and bearing arms, the peo- 
ple would be at a great disadvantage. Military despot- 
isms might destroy free government. It is to aid in pre- 



Government of the States 295 

venting this that this section is inserted. But here, as 
in every other matter, good government is arrived at 
only by a system of checks and balances. The good citi- 
zen must be allowed to keep and bear arms, but good 
order and the public peace require that the bully be 
prohibited from wearing them. Hence we find the ex- 
press grant of authority "to regulate the wearing of 
arms with a view to prevent crimes." 

Relation of the Military to the Civil Authorities. Sec- 
tions 24 and 25 provide : 

The military shall at all times be subordinate to the civil au- 
thority. 

No soldier shall in time of peace be quartered in the house of 
any citizen without the consent of the owner, nor in time of war 
but in a manner prescribed by law. 

These provisions indicate clearly the nature of our 
institutions. Governments are not organized in America 
for the purpose of military display or of waging war. 
They are to protect a peace-loving people in the orderly 
conduct of their religious, social, and business affairs. 
Armies and militia are not ends in themselves, but means 
by which to secure the rights and liberties of the people. 

Monopolies. Section 26 of the Bill of Rights provides : 

Perpetuities and monopolies are contrary to the genius of free 
government, and shall never be allowed; nor shall the law of 
primogeniture or entailments ever be in force in this State. 

This section and the kindred provisions of Sections 3 
and 17 of the Bill of Rights declare that equality of right 
and opportunity is one of the fundamental principles on 
which our institutions rest, and announce that special 
privileges and advantages are not to be tolerated. No 
one should have the power to exclude his neighbor from 
equal opportunity in the battle of life. 

Suspension of the Law. Section 28 of the Bill of Rights 
provides : 



296 Civil Government 

No power of suspending the laws in this State shall be exercised 
except by the Legislature. 

The Legislature declares what the rules of conduct by 
which all are to be governed shall be, and it alone shall 
say when and upon whom these rules shall be operative. 

Treason. Section 22 of the Bill of Rights provides : 

Treason against the State shall consist only in levying war 
against it, or adhering to its enemies, giving them aid and comfort; 
and no person shall be convicted of treason except on the testi- 
mony of two witnesses to the same overt act, or on confession in 
open court. 

As treason is one of the most heinous crimes which 
can be committed against the State, and as it is 
never charged except in conditions of public unrest and 
excitement, the people thought it wise to anticipate any 
impulsive and rash action by the Legislature regarding 
it. Hence they define it in the Constitution, and also 
make two witnesses to the same overt act or a confession 
by the defendant in open court necessary to a conviction 
of this offense. 

RECAPITULATION. 

The Bill of Rights in the Texas Constitution includes 
many valuable guarantees to individuals. Many of these 
guarantees have been considered previously. 

The State can pass no law abridging liberty of speech. 
It is its duty to prevent license in speech. 

Seizures and searches of persons and property are 
forbidden except upon probable cause when the facts 
are sworn to. 

Serious crimes can only be prosecuted by indictment, 
and misdemeanors by indictment or information. 

The accused must be advised as to the accusation 
against him. He must have fair opportunity to be heard 
in open court, and cannot be compelled to incriminate 
himself. 



Government op the States 297 

Enlargement upon reasonable bail before final trial 
is guaranteed, except in capital cases with strong proof. 

Habeas Corpus cannot be suspended. 

No one can be tried or put in jeopardy twice for the 
same offense. 

Trial by jury cannot be denied, but may be regulated. 

Bills of attainder, ex post facto and retroactive laws 
and laws impairing the obligation of contracts are for- 
bidden. 

Payment must be made for property taken under 
power of eminent domain. 

Due process of law is guaranteed to all persons. 

Outlawry and "transportation" are forbidden. 

Corruption of blood is forbidden. 

Every person has the right to keep arms for the de- 
fense of himself, his family and his country. Wearing 
arms of such kinds and in such ways as to lead to and 
facilitate breaches of the public peace should be pro- 
hibited. 

The military authorities are subordinate to the civil. 

Monopolies and special privileges are contrary to our 
institutions, and cannot be lawfully permitted. 

The Legislature has exclusive authority to suspend the 
laws. 

No one can be convicted of treason except upon testi- 
mony of two witnesses to same act, or by confession in 
open court. 

QUESTIONS. 

I. 1. What is meant by the provisions as to searches and 
seizures? 2. How do the guarantees contained in the first two 
sentences of Section 10 of the Bill of Rights compare with the 
requirements as to the process of law in criminal cases? 3. What 
is the effect of the provisions of Sections 11 and 13 as to bail when 
taken together? 4. How do the provisions in Section 12 compare 
with those of the Federal Constitution on Habeas Corpus? 5. 



298 Civil Government 

What is the effect of the last sentence of Section 13 and of Sec- 
tion 19, when considered together. 6. Compare Section 14 with 
the similar provision in the Federal Constitution, and give their 
differences. 7. What is the combined effect of the first sentence 
of Section 10, and of Section 15? 8. What is a retroactive law, 
and one impairing the obligation of a contract ? 9. How does Sec. 
17 regulate the State's power of eminent domain? 10. What do 
Sections 20 and 21 mean? 11. What is the difference between 
liberty and license? Why is it the duty of government to regulate 
speech? How does just regulation of speech differ from abridgment 
of the right to freedom of speech? 12. Why is the citizen pro- 
tected in his right to keep arms? Why is it necessary to regulate 
wearing arms? 13. Why should the military authorities be sub- 
ordinate to the civil? 14. Who alone has the power of suspending 
the law in Texas? Why is this desirable? 15. Why is it proper 
to regulate prosecutions for treason by constitutional provisions? 



CHAPTER XXV. 

PUBLIC SCHOOLS OF TEXAS. 

The Public School System: Historical References. 

One of the complaints made by the Texans against the 
Mexicans in the Declaration of Independence of 1836 
was that they had failed to provide any system of public 
education. This idea was never lost to sight, and from 
time to time the Congress of the Republic or the Legis- 
lature of the State passed laws regarding it, establishing 
a system of schools and appropriating immense portions 
of the public lands for their support. These lands and 
their proceeds constitute the greater portion of the pres- 
ent public school fund. 

The present Constitutional provisions are as follows: 
Article VII. Section 1. A general diffusion of knowledge be- 
ing essential to the preservation of the liberties and rights of the 
people, it shall be the duty of the Legislature of the State to es- 



Government of the States 299 

tablish and make suitable provisions for the support and mainte- 
nance of an efficient system of public free schools. 

Sec. 2. All funds, lands and other property heretofore set apart 
and appropriated for the support of public schools; all the alter- 
nate sections of land reserved by the State out of grants hereto- 
fore made or that may hereafter be made to railroads, or other 
corporations, of any nature whatsoever; one-half of the public do- 
main of the State; and all sums of money that may come to the 
State from the sale of any portion of the same, shall constitute 
a perpetual public school fund. 

Sec. 3. One-fourth of the revenue derived from the State occupa- 
tion taxes, and a poll tax of one dollar on every male inhabitant 
of this State between the ages of twenty-one and sixty years, shall 
be set apart annually for the benefit of the public free schools, and, 
in addition thereto, there shall be levied and collected an annual 
ad valorem State tax of such an amount, not to exceed twenty 
cents on the one hundred dollars valuation, as, with the available 
school fund arising from all other sources, will be sufficient to 
maintain and support the public free schools of this State for a 
period of not less than six months in each year; and the Legisla- 
ture may also provide for the formation of school districts within 
all or any of the counties of this State, by general or special law, 
without the local notice required in other cases of special legisla- 
tion, and may authorize an additional annual ad valorem tax to be 
levied and collected within such school districts for the further 
maintenance of public free schools and the erection of school build- 
ings therein; provided, that two-thirds of the qualified property 
tax-paying voters of the district, voting at an election to be held 
for that purpose, shall vote such tax, not to exceed in any one 
year twenty cents on the one hundred dollars valuation of the 
property subject to taxation in such district, but the limitation 
upon the amount of district tax herein authorized shall not apply 
to incorporated cities or towns constituting separate and inde- 
pendent school districts. 

Sec. 4. The lands herein set apart to the public free school 
fund shall be sold under such regulations, at such times, and on 
such terms as may be prescribed by law; and the Legislature shall 
not have power to grant any relief to purchasers thereof. The 
Comptroller shall invest the proceeds of such sales, and of those 
heretofore made, as may be directed by the Board of Education 



300 Civil Government 

herein provided for, in the bonds of the United States, the State of 
Texas, or counties in said State, or in such other securities, and 
under such restrictions as may be prescribed by law; and the State 
shall be responsible for all investments. 

Sec. 5. The principal of all bonds and other funds, and the 
principal arising from the sale of the lands hereinbefore set apart 
to said school fund, shall be the permanent school fund; and all 
the interest derivable therefrom and the taxes herein authorized 
and levied shall be the available school fund, to which the Legis- 
lature may add not exceeding one per cent annually of the total 
value of the permanent school fund; such value to be ascertained 
by the Board of Education until otherwise provided hj law; and 
the available school fund shall be applied annually to the support 
of the public free schools. And no law shall ever be enacted ap- 
propriating any part of the permanent or available school fund 
to any other purpose whatever; nor shall the same or any part 
thereof ever be appropriated to or used for the support of any 
sectarian school; and the available school fund herein provided 
shall be distributed to the several counties according to their 
scholastic population and applied in such manner as may be pro- 
vided by law. 

Sec. 6. All lands heretofore or hereafter granted to the several 
counties of this State for educational purposes, are of right the 
property of said counties respectively to which they were granted, 
and title thereto is vested in said counties, and no adverse posses- 
sion or limitation shall ever be available against the title of any 
county. Each county may sell or dispose of its lands in whole or 
in part, in manner to be provided by the commissioner's court of 
the county. Actual settlers residing on said lands shall be protected 
in the prior right of purchasing the same to the extent of their 
settlement, not to exceed one hundred and sixty acres, at the price 
fixed by said court, which price shall not include the value of ex- 
isting improvements made thereon by such settlers. Said lands, 
and the proceeds thereof, when sold, shall be held by said counties 
alone as a trust for the benefit of public schools therein; said pro- 
ceeds to be invested in bonds of the United States, the State of 
Texas, or counties in said State, or in such other securities, and 
under such restrictions as may be prescribed by law; and the coun- 
ties shall be responsible for all investments; the interest thereon, 
and other revenue, except the principal, shall be available fund. 



Government of the States 301 

Sec. 7. Separate schools sliall be provided for the white and 
colored children, and impartial provision shall be made for both. 

Sec. 8. The Governor, Comptroller, and Secretary of State shall 
constitute a Board of Education, who shall distribute said funds to 
the several counties, and perform such other duties concerning pub- 
lic schools as may be prescribed by law. 

Sec. 9. All lands heretofore granted for the benefit of the luna- 
tic, blind, deaf and dumb, and orphan asylums, together with such 
donations as may have been or may hereafter be made to either 
of them, respectively, as indicated in the several grants, are hereby 
set apart to provide a permanent fund for the support, maintenance 
and improvement of said asylums. And the Legislature may pro- 
vide for the sale of the lands and the investment of the proceeds 
in manner as provided for the sale and investment of school lands 
in section four of this article. 

Sec. 10. The Legislature shall, as soon as practicable, establish, 
organize and provide for the maintenance, support and direction 
of a university of the first class, to be located by a vote of the 
people of this State, and styled "The University of Texas," for the 
promotion of literature and the arts and sciences, including an 
agricultural and mechanical department. 

Sec. 11. In order to enable the Legislature to perform the duties 
set forth in the foregoing section, it is hereby declared that all 
lands and other property heretofore set apart and appropriated for 
the establishment and maintenance of "The University of Texas," 
together with all the proceeds of sales of the same, heretofore made 
or hereafter to be made, and all grants, donations and appropria- 
tions that may hereafter be made by the State of Texas, or from 
any other source, shall constitute and become a permanent univer- 
sity fund. And the same as realized and received into the treas- 
ury of the State (together with such sum belonging to the fund 
as may now be in the treasury) shall be invested in bonds of the 
State of Texas, if the same can be obtained; if not, then in United 
States bonds; and the interest accruing thereon shall be subject 
to appropriation by the Legislature to accomplish the purpose de- 
clared in the foregoing section; provided, that the one- tenth of the 
alternate sections of the lands granted to railroads, reserved by 
the State, which were set apart and appropriated to the establish- 
ment of "The University of Texas," by an act of the Legislature of 
February 11, 1858, entitled "An act to establish 'The University 



302 Civil Government 

of Texas/ " shall not be included in or constitute a part of the 
permanent university fund. 

Sec. 12. The land herein set apart to the university fund shall 
be sold under such regulations, at such times and on such terms 
as may be provided by law; and the Legislature shall provide for 
the prompt collection, at maturity, of all debts due on account of 
university lands heretofore sold, or that may hereafter be sold, and 
shall in neither event have the power to grant relief to the pur- 
chasers. 

Sec. 13. The Agricultural and Mechanical College of Texas, es- 
tablished by an act of the Legislature, passed April 17, 1871, located 
in the County of Brazos, is hereby made and constituted a branch 
of the University of Texas, for instruction in agriculture, the 
mechanic arts and the natural sciences connected therewith. And 
the Legislature shall, at its next session, make an appropriation, 
not to exceed forty thousand dollars, for the construction and com- 
pletion of the buildings and improvements, and for providing the 
furniture necessary to put said college in immediate and successful 
operation. 

Sec. 14. The Legislature shall, also, when deemed practicable, es- 
tablish and provide for the maintenance of a college or branch uni- 
versity for the instruction of the colored youths of the State, to 
be located by a vote of the people; provided, that no tax shall be 
levied and no money appropriated out of the general revenue, either 
for this purpose, or for the establishment and erection of the build- 
ings of the University of Texas. 

Sec. 15. In addition to the lands heretofore granted to the Uni- 
versity of Texas, there is hereby set apart and appropriated, for 
the endowment, maintenance and support of said university and 
its branches, one million acres of the unappropriated public domain 
of the State, to be designated and surveyed as may be provided by 
law; and said lands shall be sold under the same regulations and 
the proceeds invested in the same manner as is provided for the 
sale and investment of the permanent university fund ; and the Legis- 
lature shall not have power to grant any relief to the purchasers of 
said lands. 

Schools Constituting the Present System. The present 
system consist in part of the State University, the Agri- 
cultural and Mechanical College, the Sam Houston Nor- 



Government of the States 303 

mal Institute, the North Texas State Normal College, 
the Southwest Texas Normal School, the Texas Indus- 
trial Institute and College for the Education of White 
Girls of the State of Texas in the Arts and Sciences, and 
the Prairie View State Normal and Industrial College, 
all of which are maintained and controlled directly by 
the State through Boards designated for that purpose. 
High schools, supported in part by the State and in part 
from local sources, and Grammar or Primary Schools, 
some of which are supported entirely by the State and 
some by both State and local funds, complete the sys- 
tem. All high schools, grammar and primary schools, 
are controlled by local boards selected by the people 
directly interested in them. 

School Funds. There are two kinds of school funds, 
called respectively the permanent and the available 
funds. 

Permanent Fund. This consists of land, cash and 
public securities, and is the capital from which the avail- 
able funds are procured. It is the policy of the State 
to make these funds as productive as can be done with 
absolute safety to the schools. The lands are leased 
while they remain in the hands of the State, and when 
prices are reasonably high they are sold, The principal 
remains part of the permanent funds, and the interest 
goes into the available fund. All cash coming into the 
permanent fund is required to be invested in United 
States, State of Texas, county, city or school district 
bonds. The law requires the Attorney General and 
Comptroller to examine into the validity and desirability 
of all securities in which it is proposed to invest this 
fund, and forbids the purchase unless they are strictly 
in conformity to law. Still fearing loss to the fund, the 



304 Civil Government 

State is required to guarantee the payment to this fund 
of all securities bought with it. 

Available Fund. The available fund consists of the 
income from the permanent fund, of one-fourth of all 
occupation taxes collected by the State, of a poll-tax of 
one dollar on all male inhabitants of the State over twen- 
ty-one years and not over sixty years of age, and of the 
revenue derived from a State ad valorem tax, which 
cannot exceed twenty cents on the one hundred dollars' 
worth of property. 

The funds belonging to the University and to the Agri- 
cultural and Mechanical College are each separated from 
those belonging to the common schools generally. 

The University funds consist of lands and public secur- 
ities, and those of the College of public securities only. 
Neither of these institutions has any share in the school 
funds raised either by poll or ad valorem tax. The 
available fund belonging to each is greatly inadequate 
to the support of the institution, and is supplemented 
every year by money appropriated by the Legislature 
from the general State revenues. 

The other colleges mentioned above have no fund be- 
longing to them, but are dependent entirely on Legisla- 
tive appropriation. 

The high schools and grammar schools share in the 
available State funds, and many of them in addition 
have funds raised by special taxes, voted by the people 
of their respective localities. 

The University of Texas. The Constitution of Texas 
commands the Legislature to "establish, organize and 
provide for the maintenance, support and direction of a 
University of the first class, to be located by the vote 
of the people of this State, and styled 'The University 
of Texas/ for the promotion of literature, arts and sci- 



Government of the States 305 

ences, including an agricultural and mechanical depart- 
ment. ' ' 

By popular vote the "main" University was located 
at Austin, and the Medical Department at Galveston. 
The main University was opened in 1883, and now in- 
cludes a department of Arts and Sciences, of Law, of 
Engineering and of Education. The medical branch was 
opened in 1891. 

The general management of the University is vested in 
a Board of eight Regents, appointed by the Governor 
every two years, subject to approval of the Senate. The 
administrative work of the institution is performed by 
a president and his staff of assistants under general con- 
trol of the Regents. 

The permanent funds of the University, as stated, con- 
sist of lands, public bonds and land notes, and the avail- 
able funds consist of the rental of its lands, interest on 
the securities held by it, and money appropriated from 
session to session by the Legislature. 

The relations between the University and the com- 
mon schools is one of mutual dependence and friendli- 
ness. In addition to the work done in regular sessions 
of the institution, in the Department of Education there 
is each summer maintained at the University a normal 
school for the benefit of teachers throughout the State. 

The Agricultural and Mechanical College. This insti- 
tution is maintained at College Station, in Brazos County. 
It was established in 1871. Its managing board consists 
of the Commissioner of Insurance, Statistics and History, 
and seven other members appointed by the Governor. It 
has a president in charge of its affairs, who acts under 
the general supervision of the board of directors. 

It has a permanent fund invested in United States 

20 



306 Civil Government 

bonds, but is to a large extent dependent on direct appro- 
priations by the Legislature. The College is military in 
its organization, but gives special attention to agricul- 
tural and mechanical studies, including civil and mechan- 
ical engineering. In connection with it various experi- 
mental stations in agriculture are maintained, and prac- 
tical tests are made as to the best soils, and breeds of 
stock, and similar matters of public interest. 

Normal Institutes. The Sam Houston Normal Insti- 
tute, located at Huntsville, is the oldest, having been 
founded and named in honor of General Sam Houston. 

The North Texas State Normal College is at Denton. 
It was founded in 1899. 

The Southwest Texas Normal is at San Marcos. It 
was established in 1901. 

All of these schools are maintained by the State for 
the purpose mainly of training teachers for the publie 
schools of the State. They are specially equipped, and 
the courses of instruction are arranged with especial ref- 
erence to that. 

The Texas Industrial Institute and College for the 
Education of White Girls of the State of Texas in the 
Arts and Sciences is located at Denton. Its purpose is 
clearly set out in its name, and its equipment and cur- 
riculum is designed to accomplish this. 

Prairie View State Normal and Industrial College. 
This is the State college for colored youths, contem- 
plated in Section 14, Art. VII, of the State Constitution. 
It is located at Prairie View, in Waller County, and 
is under the management of the Board of the Agricul- 
tural and Mechanical College. It maintains a normal 
school for training colored teachers, and also does work 
in industrial branches. 

Common Schools Proper. The county is really the 



Government of the States 307 

territorial unit in the common school system, and the gen- 
eral provisions of the school law are based on it. The 
law, however, permits the formation of school districts 
which for some purposes are taken out of the operation 
of the general school laws and governed by regulations 
intended solely for them. 

State Officers Connected with the Common Schools 
Proper, The State authorities having charge of common 
schools are the Board of Education, and the State Super- 
intendent of Public Instruction. The State Board of 
Education consists of the Governor, the Secretary of 
State and the Comptroller. The Superintendent of Pub- 
lic Instruction is ex-officio Secretary of the Board. The 
principal functions of the Board are to set aside each 
year to each subdivision of the State entitled to share 
in the available school fund its proportionate part of 
such fund, and to hear and decide appeals taken from the 
decisions of the State Superintendent in school matters. 

The State Superintendent is "charged with the admin- 
istration of the school laws and the general superintend- 
ing of the business relating to the public schools of the 
State." He hears and decides, subject to appeal to the 
State Board of Education, all controversies between the 
subordinate school officers and teachers. He prepares all 
forms to be used in connection with the public schools, 
and examines all accounts against the State school fund, 
his approval of every claim against that fund being pre- 
requisite to drawing warrants on it by the Comptroller. 
He keeps the record of the State Board of Education and 
all others pertaining to State educational matters. He 
is the general adviser of all subordinate school officers, 
and in general looks after the common schools through- 
out the State, promoting their interests in all legitimate 
ways. 



308 Civil Government 

County Superintendent. In each county in the State 
having a scholastic population of 3,000 or over there is 
elected a county superintendent. He holds office two 
years and receives a salary of not less than $900, nor 
more than $1500, per annum, according to the number 
of school children within scholastic age in his county. In 
counties having less than 3,000 scholastic population 
the County Judge is ex officio Superintendent of Public- 
Schools, unless by request of 25 per cent, of the voters 
of such a county the Commissioners Court provides for 
the election of a Superintendent. The County Superin- 
tendent has general supervision and control over all 
schools in his county not in independent school districts, 
particularly in the matters of the appointment of teach- 
ers and the expenditure of the school funds. He visits 
schools, holds county institutes and gives all his atten- 
tion to the interests of this important work. He acts 
under and reports to the State Superintendent. 
~ School Districts. Each county is divided by the Com- 
missioners Court into convenient school districts, in which 
three school trustees are elected annually, who have 
charge of the schools within them. The funds for build- 
ing and furnishing school houses and for maintaining the 
schools are furnished by the State out of the available 
school fund, which is distributed among the counties of 
the State on the basis of their scholastic population, and 
that falling to each county is distributed by the County 
Superintendent among the districts in the county. The 
number of schools in each district is determined by the 
trustees and the County School Superintendent. The 
money belonging to the district is divided among the 
several schools in proportion to the number of pupils 
enrolled for each. 

The teachers are employed by the trustees. They can 



Government of the States 309 

receive such salaries as are agreed upon by the trustees, 
which must be within the limit allowed by law for teach- 
ers holding the grade certificate held by the particular 
teacher. These contracts are subject to approval by the 
County Superintendent. 

The amount coming to each school from the State fund 
is not sufficient to maintain the schools for more than 
four to six months annually, and for this reason laws are 
made for creating independent districts and allowing the 
imposition of larger local taxes. 

Special Taxes in School Districts. Any district, as 
laid out by the Commissioners Court, may incorporate 
into a school district and take charge of its public 
schools, and levy special school taxes, provided two- 
thirds of the voters residing in the district vote to do so. 
They may also vote to issue school-house bonds for the 
purpose of building school houses. These bonds are pay- 
able by taxes levied on the property in the district. The 
aggregate special tax levied in any district in any year 
shall not exceed twenty cents on the $100 valuation. 
After voting such special taxes and issuing such bonds, 
school districts of this kind are still under the supervi- 
sion of the County Superintendent. 

Independent Districts Including Towns and Villages. 
Any unincorporated town or village, or one incorporated 
under the general laws of the State which has not assumed 
control of the public schools within it, is authorized to 
join with the inhabitants of the adjacent territory and 
with them incorporate for school purposes only. Such 
corporation must not exceed twenty-five square miles, and 
must be as nearly in a square as conveniently can be. 
Such incorporation may be effected by a majority \ 
and the district becomes independent of the county school 
authorities. Such districts can levy special taxes and 



310 Civil Government 

issue bonds upon a two-thirds vote, as other independent 
districts. 

Cities and Incorporated Towns as Independent School 
Districts. Any city or town incorporated under the laws 
of the State may assume control of the public schools 
within its territory by a majority vote. Such assumption 
makes the city or town an independent district. Such 
city or town may by vote of the taxpayers within its 
territory and participating in such election authorize the 
levy of a special school tax not to exceed fifty cents on 
the $100 of property. 

In all independent school districts established under 
the present law there are seven trustees who are elected 
by the people within the respective districts, and who 
have control of the public schools within the district free 
from supervision by the County School Superintendent. 

Teachers. No one can be employed as a teacher 
in the common schools of the State who does not 
have a certificate obtained upon required work done in 
an approved university or college or upon examination 
by a properly constituted board. These certificates indi- 
cate different degrees of proficiency, and are of different 
values. They extend from the lowest, which entitles to 
teach only in the least advanced schools in the county 
in which they are issued, up to the permanent State cer- 
tificates, which entitle to teach in any grade of State 
school in the State without reexamination. The salaries 
of teachers are regulated by contract with the trustees 
of the school, when approved by the County Superin- 
tendent, subject to the limits fixed by law as the max- 
imum which may be paid to teachers holding certain 
classes of certificates. 

The teachers in incorporated cities and towns which 
have assumed control of their schools and provided a city 



Government of the States 311 

superintendent of education and have voted special taxes, 
or otherwise maintain school nine months in the year, 
are under the control of the school trustees in such cities 
and towns, who make such regulations as to examina- 
tions, certificates and salaries as they think proper. 

Scholastic Age. The regular scholastic age which un- 
der the general laws of the State entitles to free attend- 
ance in the schools is from 7 to 17 years, the age being 
that existing at the opening of the scholastic year. 

Grading. As far as practicable the public schools are 
graded. Where this cannot be done the trustees and 
teachers make the best arrangement which the circum- 
stances admit. 

Sectarian Schools. No part of the public school fund 
can be lawfully used to support any sectarian school. 
Just what is meant by sectarian here is not clearly deter- 
mined. Many years ago it was held that the word was 
not confined to the different denominations of Christians, 
but that the Christian religion itself is a sect, and the 
Bible cannot be taught in the public schools. Later one 
of the Courts of Civil Appeals has held that reading such 
portions of the Bible as the Sermon on the Mount and 
other similar texts in the public schools without com- 
ment, or repeating the Lord's prayer, did not violate the 
law. 

Races. The Constitution and statutes both require 
that schools for whites and negroes shall be kept sep- 
arate, but that each race shall be treated justly in the 
distribution of the funds. This injunction is observed. 
As the distribution of the school fund among the coun- 
ties and school districts is made according to the num- 
ber of pupils in them the negro children in fact get a 
much larger share of the fund in proportion to the tax 
paid by their parents than do the white children. 



312 Civil Government 

Eleemosynary Institutions. The State maintains a 
large number of eleemosynary institutions. The most 
important of these have been enumerated in the chapter 
on the Executive Department. They indicate clearly the 
policy of the State toward those citizens who are un- 
fortunate and need assistance. 

RECAPITULATION. 

The public school system of Texas extends from the 
smallest county schools through all intermediate grades 
to the State University. It includes the primary schools, 
grammar schools, high schools, industrial schools, nor- 
mal schools, the Agricultural and Mechanical College 
and the State University. 

These are supported by revenue from bonds, land notes, 
rental of lands, and taxes. 

These funds are of two kinds, the permanent and the 
available. 

The Main State University is located at Austin, the 
Medical Department at Galveston. It is controlled by 
a Board of Eegents. Its permanent funds are lands and 
United States bonds. Its available funds are interest 
on its securities and rentals from its lands, and money 
appropriated by the Legislature. 

The Agricultural and Mechanical College is at College 
Station in Brazos County. It is controlled by a Board of 
Managers. Its permanent funds are in United States 
bonds. Its available funds are interest on these bonds, 
and appropriations. 

The normal schools ar$ under the control of the State 
Board of Education, and the Industrial Institute is under 
control of a separate Board. They are engaged princi- 
pally in training teachers for the public schools of the 
State. They are supported by Legislative appropriation. 



Government of the States 313 

The Prairie View Normal is a college for colored peo- 
ple located in Washington County. It is under the same 
management as the Agricultural and Mechanical Col- 
lege. 

The common schools proper are supported by the rent- 
als of lands and interest on land notes, and special taxes 
required by the Constitution and levied by the Legisla- 
ture. 

The State Superintendent of Public Instruction has 
general control over all the common schools within the 
State. 

In each county there is a Superintendent of Public 
Instruction, who has general control of all schools in his 
county which are not in independent districts. 

The law authorizes the creation of independent school 
districts : first, districts in which there is no incorporated 
town or city; second, in districts in which there is an in- 
corporated town or city which has not assumed control of 
the schools within it, and third, incorporated cities and 
towns which assume control of their schools. 

By proper action these different districts can levy 
additional taxes for school purposes and issue bonds for 
school buildings. 

Each independent district elects seven trustees, who 
have charge of all schools within it. In such districts 
as consist of or include an incorporated city or town 
the schools are not under the control of the County Su- 
perintendent. 

Public schools cannot be sectarian. 

Separate schools are maintained for the white and 
negro children. 

QUESTIONS. 

I. 1. What was one of the complaints made by the Texans 
against the Mexicans in the Declaration of Independence ? 2. Name 



314 Civil Government 

the different schools and classes of schools in the present public 
school system. 3. What is the permanent school fund, and of what 
does it consist? 4. What is the available school fund, and of what 
does it consist? 5. Under what authority is the University of 
Texas maintained? What character of institution does the Consti- 
tution require it to be? Where is the Main University located? 
Where the Medical Branch? What departments are in the Main 
University? How is it supported? 6. Where is the Agricultural 
and Mechanical College located? What is the nature of the studies 
carried on there? How is it governed, and how maintained? 7. 
Name the different State Normal schools, and state the nature of 
the work done in them, and how they are supported. 8. What is 
the nature and purpose of the College for Girls at Denton? 9. 
What is the Prairie View State Normal and Industrial College? 
By whom is it managed? 

II. 1. State briefly the powers and duties of the State Super- 
intendent of Public Instruction. 2. State briefly the powers and 
duties of the County School Superintendent. 

III. 1. Describe briefly the maintenance and operation of schools 
under the different systems: (a) In districts of ordinary kinds, 
(b) In districts in which special taxes are provided for but no in- 
dependent district established, (e) In districts which are incor- 
porated for school purposes only, and (d) In cities and towns which 
have assumed control of their schools. 

IV. 1. Describe the Community system, comparing it with the 
District system. 

V. 1. What evidence of efficiency must a person have before 
he can be employed as a teacher in the common schools? How is 
this evidence obtained? What is a county certificate? What a 
permanent State certificate? How are the salaries of teachers fixed? 
2. Who controls the employment of teachers in cities which have 
assumed control of their schools? 

VI. 1. What is the scholastic age in Texas? 2. Can sectarian 
schools be supported or assisted by the public school fund? 3. 
What provision is made for having separate schools for whites and 
negroes ? 



Government of the States 315 



CHAPTER XXVI. 

MISCELLANEOUS PROVISIONS OF THE TEXAS 

CONSTITUTION. 

Texas Land System. Article XIV of the Texas Consti- 
tution is as follows : 

Section 1. There shall be one General Land Office in the State, 
which shall be at the seat of government, where all land titles 
which have emanated or may hereafter emanate from the State shall 
be registered, except those titles the registration of which may be 
prohibited by this Constitution. It shall be the duty of the Legis- 
lature at the earliest practicable time to make the Land Office self- 
sustaining, and from time to time the Legislature may establish 
such subordinate offices as may be deemed necessary. 

Sec. 2. All unsatisfied genuine land certificates barred by Sec- 
tion 4, Article 10, of the Constitution of 1869, by reason of the hold- 
ers or owners thereof failing to have them surveyed and returned 
to the land office by the first day of January, 1875, are hereby 
revived. All unsatisfied genuine land certificates now in existence 
shall be surveyed and returned to the General Land Office within five 
years after the adoption of this Constitution, or be forever barred; 
and ail genuine land certificates hereafter issued by the State shall 
be surveyed and returned to the General Land Office within five years 
after issuance, or be forever barred; provided, that all genuine land 
certificates heretofore or hereafter issued shall be located, surveyed 
or patented only upon vacant and unappropriated public domain, 
and not upon any land titled or equitably owned under color of 
title from the sovereignty of the State, evidence of the appropria- 
tion of which is on the county records or in the General Land Office; 
or when the appropriation is evidenced by the occupation of the 
owner, or of some person holding for him. 

Sec. 3. The Legislature shall have no power to grant any of the 
lands of this State to any railway company except upon the follow- 
ing restrictions and conditions: 

First. That there shall never be granted to any such corporation 
more than sixteen sections to the mile, and no reservation of any 
part of the public domain for the purpose of satisfying such grant 
shall ever be made. 



316 Civil Government 

Second. That no land certificate shall be issued to such com- 
pany until they have equipped, constructed and in running order at 
least ten miles of road, and on the failure of such company to com- 
ply with the terms of its charter, or to alienate its land at a period 
to be fixed by law, in no event to exceed twelve years from the is- 
suance of the patent, all said land shall be forfeited to the State 
and become a portion of the public domain, and liable to location 
and survey. The Legislature shall pass general laws only, to give 
effect to the provisions of this section. 

Sec. 4. No certificate for land shall be sold at the Land Office 
except to actual settlers upon the same, and in lots not to exceed 
one hundred and sixty acres. 

Sec. 5. All lands heretofore or hereafter granted to railway com- 
panies, where the charter or law of the State required or shall here- 
after require their alienation within a certain period, on pain of 
forfeiture, or is silent on the subject of forfeiture, and which lands 
have not been or shall not hereafter be alienated, in conformity 
with the terms of their charters and the laws under which the 
grants were made, are hereby declared forfeited to the State, and 
subject to pre-emption, location and survey, as other vacant lands. 
All lands heretofore granted to said railroad companies to which 
no forfeiture was attached, on their failure to alienate, are not in- 
cluded in the foregoing clause, but in all such last named cases 
it shall be the duty of the Attorney General in every instance, where 
alienations have been or hereafter may be made, to inquire into the 
same, and if such alienation has been made in fraud of the rights 
of the State, and is colorable only, the real and beneficial interest 
being still in such corporation, to institute legal proceedings in the 
county where the seat of government is situated, to forfeit such 
lands to the State, and if such alienation be judicially ascertained 
to be fraudulent and colorable as aforesaid, such lands shall be 
forfeited to the State and become a part of the vacant public do- 
main, liable to pre-emption, location and survey. 

Sec. 6. To every head of a family without a homestead there 
shall be donated one hundred and sixty acres of public land, upon 
condition that he will select and locate said land, and occupy the 
same three years, and pay the office fees due thereon. To all single 
men of eighteen years of age and upwards shall be donated eighty 
acres of public land, upon the terms and conditions prescribed for 
heads of families. 



Government of the States 317 

Sec. 7. The State of Texas hereby releases to the owner or owners 
of the soil all mines and minerals that may be on the same, subject 
to taxation as other property. 

Early Grants of Land. Under the Sapnish and 
Mexican Governments many large and indefinite grants 
of land were made to private persons. In some 
instances it was exceedingly difficult to find the 
lands at all, and in most their exact location and 
boundaries were very uncertain. When Texas estab- 
lished her independence she succeeded to a very large 
area of public land. The title to all of this vested in her. 
The policy adopted by the Republic and continued by 
the State for many years was to use these lands in dis- 
charging her obligations to her soldiers and in encourag- 
ing the settling of the country. Every soldier was given 
a designated amount of land; every head of a family 
coming into Texas was allowed a large tract, and every 
single man, 18 years of age or over, a smaller one. To in- 
duce immigration on a larger scale contracts were entered 
into with various persons by which they were to bring 
in and locate settlers. The contractors and the settlers 
received land in designated amounts, to be located within 
certain portions of the State. Later the State offered 
large quantities of land for building railroads and open- 
ing the streams of Texas for navigation, and for other 
public improvements. 

Land Certificates. The Government did not survey 
its lands and allot designated sections to these per- 
sons. Its policy was to issue to every person or corpora- 
tion entitled to land a certificate stating that he or it 
was entitled to a designated amount to be selected out 
of any unappropriated public land within the Republic 
or State. These papers were called land certificates, and 
could be ' 'located" by the owner by filing with the pub- 



318 Civil Government 

lie surveyor the certificate together with a general de- 
scription of the land sought to be acquired under it, and 
by having him survey this land, so as to get its exact 
location and description, and then forwarding the cer- 
tificate and the field notes of the land surveyed to the 
General Land Office. This " return' y by the surveyor 
was examined in the General Land Office, and if found 
correct and not in conflict with any other claim, a patent 
was issued to the locator. Such patent is a grant by the 
State, through the Governor and the Commissioner of 
the General Land Office, of the State's title to the land 
described to the person or persons named in the patent. 
It is the highest evidence of the legal title to land. 

Preemptions and Homesteads. In addition to the cer- 
tificate method of parting with her lands the State passed 
laws authorizing actual settlers to acquire lands by pre- 
emption and by homestead claims. Under a preemption 
claim the head of a family could acquire a small tract 
without payment to the State, by living on it for a 
designated time. Under the homestead law he could ac- 
quire a larger tract, but was compelled both to live upon 
the land and to pay a small sum for it. This homestead 
right must be carefully distinguished from the home- 
stead exemption rights to be hereafter considered. 

School Lands. During all of the periods of her de- 
velopment Texas has reserved an immense amount of 
land for her public schools. In order to have this land 
surveyed she early adopted the plan of requiring all per- 
sons receiving certificates of land for public improve- 
ments to survey two sections for every one to which they 
were entitled. Every alternate section so surveyed was 
retained by the State as part of her school lands, and the 
other was patented to the owner of the certificate. The 
school lands thus surveyed amount to thousands of acres 



Government of the States 319 

and are frequently referred to simply as "alternate sec- 
tions." These do not by any means comprise all the 
school lands of the State. In the Constitution of 1876, 
in addition to the alternate sections then surveyed, the 
school lands are declared to include "one-half of the 
public domain.' ' 

Sale of School Lands. The Constitution of 1876 also 
provides for the sale of all school lands under Legisla- 
tive regulation. The Legislature has passed numerous 
and in some respects confusing laws on this subject. Un- 
der all of them the Commissioner of the Land Office has 
been assigned most onerous duties. 

Conflict of Interests. In the days of the early settle- 
ments Texas was still the hunting ground of the Indian. 
Many of the tribes were hostile. So it is matter for little 
surprise that much land was located with instruments in 
the safer shelter of the surveyor's office. Conflicts in 
surveys were inevitable, and much confusion resulted. 
These controversies found their way through the numer- 
ous surveyors' offices of the State to the General Land 
Office and to the Commissioner. Many of them ultimately 
were referred to the courts for adjustment. In later 
years the difficulties arising between different claimants 
to land are not so frequently dependent on location or 
boundary of the land as on the merits of the claims them- 
selves. 

Records. Land is the most enduring property man 
can have, and it is absolutely essential to the order and 
development of the community that the evidences of 
title to it shall be enduring and securely kept. Hence 
a large force of men is constantly engaged in preparing 
and caring for a permanent record of everything done 
in the Land Office. 

Registration of Land Titles. The foregoing gives very 



320 Civil Government 

briefly the system by which the State parts with her 
title to public lands. After land becomes private prop- 
erty the public is still very much interested in it, and 
the security of its owners. For this reason all convey- 
ances of land are required to be made in writing. They 
should be acknowledged or proved up before a proper 
officer as convenient evidence of their genuineness. The 
State also provides for copying all such deeds in a pub- 
lic record kept in each county by the County Clerk. When 
a deed is left with the County Clerk to be recorded it 
is filed, and every one dealing with the land included in 
it is regarded in law as knowing all that he could find 
out if he actually read the deed. 

State Taxation. Article VIII of the Constitution pro- 
vides : 

Section 1. Taxation shall be equal and uniform. All prop- 
erty in this State, whether owned by natural persons or cor- 
porations, other than municipal, shall be taxed in proportion 
to its value, which shall be ascertained as may be provided by law. 
The Legislature may impose a poll tax. It may also impose occupa- 
tion taxes, both upon natural persons and upon corporations other 
than municipal, doing any business in this State. It may also tax 
incomes of both natural persons and corporations, other than 
municipal, except that persons engaged in mechanical and agricul- 
tural pursuits shall never be required to pay an occupation tax; 
provided, that two hundred and fifty dollars worth of household 
and kitchen furniture belonging to each family in the State shall 
be exempt from taxation, and provided further, that the occupation 
tax levied by any county, city or town, for any year, on persons 
or corporations pursuing any profession or business, shall not ex- 
ceed one-half of the tax levied by the State for the same period 
on such profession or business. 

Section 2. All occupation taxes shall be equal and uniform upon 
the same class of subjects within the limits of the authority levy- 
ing the tax; but the Legislature may, by general laws, exempt from 
taxation public property used for public purposes; actual places 
of religious worship; places of burial not held for private or cor- 



Government of the States 321 

porate profit; all buildings used exclusively and owned by persons 
or associations of persons for school purposes (and the necessary 
furniture of all schools), and institutions of purely public charity, 
and all laws exempting property from taxation, other than the 
property above mentioned, shall be void. 

Section 3. Taxes shall be levied and collected by general laws 
and for public purposes only. 

Section 4. The power to tax corporations and corporate prop- 
erty shall not be surrendered or suspended by act of the Legisla- 
ture, by any contract or grant to which the State shall be a party. 

Sec. 5. All property of railroad companies,, of whatever descrip- 
tion, lying or being within the limits of any city or incorporated 
town within this State, shall bear its proportionate share of munic- 
ipal taxation, and if any such poperty shall not have been hereto- 
fore rendered, the authorities of the city or town within which it 
lies shall have power to require its rendition, and collect the usual 
municipal tax thereon, as on other property lying within said 
municipality. 

Sec. 8. No money shall be drawn from the treasury but in pur- 
suance of specific appropriations made by law; nor shall any ap- 
propriation of money be made for a longer term than two years, 
except by the first Legislature to assemble under this Constitution, 
which may make the necessary appropriation to carry on the gov- 
ernment until the assemblage of the sixteenth Legislature. 

Sec. 7. The Legislature shall not have power to borrow, or in 
any manner divert from its purpose, any special fund that may, or 
ought to, come into the treasury; and shall make it penal for any 
person or persons to borrow, withhold, or in any manner to divert 
from its purpose, any special fund, or any part thereof. 

Sec. 8. All property of railroad companies shall be assessed, 
and the taxes collected in the several counties in which said prop- 
erty is situated, including so much of the road-bed and fixtures as 
shall be in each county. The rolling-stock may be assessed in gross 
in the county where the principal office of the company is located, 
and the county tax paid upon it shall be apportioned by the Comp- 
troller in proportion to the distance such road may run through any 
such county, among the several counties through which the road 
passes, as a part of their tax assets. 

Sec. 9. The State tax on property, exclusive of the tax neces- 
21 



322 Civil Government 

sary to pay the public debt and of tbe taxes provided for the benefit 
of public free schools, shall never exceed thirty-five cents on the one 
hundred dollars valuation; and no county, city, or town shall levy 
more than twenty-five cents for city or county purposes, and not 
exceed fifteen cents for roads and bridges on the one hundred dollars 
valuation, except for the payment of debts incurred prior to the 
adoption of the amendment, September 25, A. D. 1883; and for the 
erection of public buildings, streets, sewers, water works, and other 
permanent improvements, not to exceed twenty-five cents on the one 
hundred dollars valuation in any one year, and except as is in this 
Constitution otherwise provided; and the Legislature may also au- 
thorize an additional annual ad valorem tax to be levied and col- 
lected for the further maintenance of the public roads; provided, 
that a majority of the qualified property tax paying voters of the 
county, voting at an election to be held for that purpose, shall vote 
such tax, not to exceed fifteen cents on the One hundred dollars 
valuation of the property subject to taxation in such county. And 
the Legislature may pass local laws for the maintenance of public 
roads and highways without the local notice required for special 
or local laws. 

Sec. 10. The Legislature shall have no power to release the in- 
habitants of, or property in, any county, city or town, from the pay- 
ment of taxes levied for State or county purposes, unless in case of 
great public calamity in any such county, city or town, when such 
release may be made by a vote of two-thirds of each House of the 
Legislature. 

Sec. 11. AH property, whether owned by persons or corporations, 
shall be assessed for taxation and the taxes paid in the county where 
situated, but the Legislature may, by a two-thirds vote, authorize 
the payment of taxes of non-residents of counties to be made at the 
office of the Comptroller of Public Accounts. And all lands and 
other property not rendered for taxation by the owner thereof shall 
be assessed at its fair value by the proper officer. 

Sec. 12. All property subject to taxation in, and owned by resi- 
dents of unorganized counties, shall be assessed and the taxes 
thereon paid in the counties to which such unorganized counties 
shall be attached for judicial purposes; and lands lying in and 
owned by non-residents of unorganized counties, and lands lying in 
the territory not laid off into counties, shall be assessed and the 
taxes thereon collected at the office of the Comptroller of the State. 



Government op the States 323 

Sec. 13. Provision shall be made by the first Legislature for the 
speedy sale of a sufficient portion of all lands and other property 
for the taxes due thereon, and every year thereafter for the sale 
of all lands and other property upon which the taxes have not been 
paid, and the deed of conveyance to the purchaser for all lands 
and other property thus sold shall be held to vest a good and per- 
fect title in the purchaser thereof, subject to be impeached only 
for actual fraud; provided, that the former owner shall, within two 
years from date of purchaser's deed, have the right to redeem the 
land upon the payment of double the amount of money paid for the 
land. 

Sec. 14. There shall be elected by the qualified electors of each 
county, at the same time and under the same law regulating the 
election of State a,nd county officers, an Assessor of Taxes, who shall 
hold his office for two years and until his successor is elected and 
qualified. 

Sec. 15. The annual assessment made upon landed property shall 
be a special lien thereon, and all property, both real and personal, 
belonging to any delinquent tax-payer shall be liable to seizure and 
sale for the payment of all taxes and penalties due hj such de- 
linquent; and such property may be sold for the payment of the 
taxes and penalties due by such delinquent, under such regulations 
as the Legislature may provide. 

Sec. 16. The sheriff of each county, in addition to his other 
duties, shall be the collector of taxes therefor. But in counties 
having ten thousand inhabitants, to be determined by the last pre- 
ceding census of the United States, a collector of taxes shall be 
elected, to hold office for two years and until his successor shall be 
elected and qualified. 

Sec. 17. The specification of the objects and subjects of taxation 
shall not deprive the Legislature of the power to require other sub- 
jects or objects to be taxed, in such manner as may be consistent 
with the principles of taxation fixed in this Constitution. 

Sec. 18. The Legislature shall provide for equalizing, as near as 
may be, the valuation of all property subject to or rendered for 
taxation (the county commissioners court to constitute a board of 
equalization) ; and may also provide for the classification of all 
lands with reference to their value in the several counties. 

Section 19. Farm products in the hands of the producer and 
family supplies for home and farm use are exempt from all taxa- 



324 Civil Government 

tion until otherwise directed by a two-thirds vote of all the mem- 
bers elect of both Houses of the Legislature. 

Article III. Section 48. The Legislature shall not have the 
right to levy taxes or impose burdens upon the people, except to 
raise revenue sufficient for the economical administration of the 
government, in which may be included the following purposes: 

The payment of all interest upon the bonded debt of the State; 

The erection and repairs of public buildings; 

The benefit of the sinking fund, which shall not be more than 
two per centum of the public debt, and for the payment of the 
present floating debt of the State, including matured bonds for the 
payment of which the sinking fund is inadequate; 

The support of public schools, in which shall be included col- 
leges and universities established by the State; and the mainte- 
nance and support of the Agricultural and Mechanical College of 
Texas; 

The payment of the cost of assessing and collecting the revenue; 
and the payment of all officers, agents and employes of the State 
Government, and all incidental expenses connected therewith. 

The support of the Blind Asylum, the Deaf and Dumb Asylum, 
and the Insane Asylum; the State cemetery and the public grounds 
of the State; 

The enforcement of quarantine regulations on the coast of Texas; 

The protection of the frontier. 

Effect of these Provisions. The subject of taxation and 
revenue receive marked attention in the Constitution of 
Texas. A good portion of the provisions are express 
grants of power, but more of them consist in limitations. 

These must be taken in connection with the limitations 
in the United States Constitution denying to the States 
the right to levy imposts or duties on imports or ex- 
ports, or on tonnage. There is no express restriction 
upon the States as to taxing the agencies and operations 
of the Federal Government ; but as the power of taxation 
only extends to those things, persons, subjects and ac- 
tivities which are within the jurisdiction of the Govern- 
ment imposing the tax, and since the States have no 



Government of the States 325 

jurisdiction over the Federal Government and its agencies, 
there is no need of further limitation as to these. 

The positive requirements of the State Constitution 
as to taxation are as follows: 

First. Taxation must be equal and uniform. 

Second. Properly must be taxed according to its value 
as ascertained by law. 

Third. The Legislature may impose poll taxes. 

Fourth. Also occupation taxes, except upon mechani- 
cal or agricultural pursuits. 

Fifth. Taxes must be levied and collected by general 
laws. 

Sixth. They can only be imposed for public purposes, 
which embrace the matters enumerated in Article III. 
Section 48, quoted above. 

Seventh. For these public purposes the taxes and rev- 
enue raised thereby shall not exceed an amount sufficient 
for the economical administration of the Government. 

Eighth. The State ad valorem tax, exclusive of that 
to pay the public debt existing when the Constitution 
was adopted and for public schools, shall not exceed 
thirty-five cents on the one hundred dollars. 

Ninth. The power to tax private corporations and 
their property cannot be surrendered by the State. 

Tenth. Farm products while still in hands of the pro- 
ducer, and family supplies for home and farm use, and 
two hundred and fifty dollars worth of household fur- 
niture of each family, is exempt from taxation. 

Eleventh. The Legislature cannot relieve the inhabi- 
tants of any community of State and county taxes, except 
in cases of great public calamity, and in such cases only 
by vote of two-thirds of each House. 

Twelfth. In all organized counties taxes must be paid 
in the county where the property is assessed and situated. 



326 Civil Government 

though if the owner is a non-resident the Legislature 
may authorize payment to the Comptroller. In unorgan- 
ized counties the taxes must be assessed and paid in the 
counties to which the unorganized counties are attached 
for judicial purposes. 

Thirteenth. Assessments on land are a lien upon it. 

Fourteenth. The Legislature is required to pass laws 
providing for the sale of property for taxes due on it. 

Fifteenth. Laws intended to equalize the values of 
all property subject to taxation shall be passed. 

State Revenues and Debts. Article III : 

Section 49. No debt shall be created by or on behalf of the State, 
except to supply casual deficiencies of revenue, repel invasion, sup- 
press insurrection, defend the State in war, or pay existing debt; 
and the debt created to supply deficiencies in the revenue shall never 
exceed in the aggregate at any one time two hundred thousand dol- 
lars. 

Section 50. The Legislature shall have no power to give or to 
lend, or to authorize the giving or lending, of the credit of the 
State in aid of, or to any person, association or corporation, 
whether municipal or other; or to pledge the credit of the State, in 
any manner whatsoever, for the payment of the liabilities, present 
or prospective,, of any individual, association of individuals, munic- 
ipal or other corporations whatsoever. 

Section 51. The Legislature shall have no power to make any 
grant or authorize the making of any grant of public money to any 
individual, association of individuals, municipal or other corpora- 
tions whatsoever ; provided, however, the Legislature may grant aid 
to indigent and disabled Confederate soldiers and sailors who came 
to Texas prior to January 1, 1880, and who are either over sixty 
years of age or whose disability is the proximate result of actual 
service in the Confederate army for a period of at least three 
months, their widows in indigent circumstances who have never re- 
married, and who have been bona fide residents of the State of 
Texas since March 1, 1880, and who were married to such soldiers 
or sailors anterior to March 1, 1880; provided, said aid shall not 
exceed eight dollars per month; and provided, further, that no ap- 
propriation shall ever be made for the purpose hereinbefore specified 






Government of the States 327 

in excess of five hundred thousand dollars for any one year. And 
also grant aid to the establishment and maintenance of a home for 
said soldiers and sailors, under such regulations and limitations a3 
may be provided by law; provided, the grant of aid to said home 
shall not exceed one hundred thousand dollars for any one year; 
and no inmate of said home shall be entitled to any other aid from 
the State; and provided, further, that the provisions of this sec- 
tion shall not be construed to prevent the grant of aid in case of 
public calamity. 

Section 52. The Legislature shall have no power to authorize 
any county, city, town or other political corporation or subdivision 
of the State, to lend its credit or to grant public money or thing of 
value, in aid of or to any individual, association or corporation 
whatsoever; or to become a stockholder in such corporation, associa- 
tion or company; p^rovided, however, that under legislative provi- 
sion any county, any political subdivisions of a county, any num- 
ber of adjoining counties, or any political subdivision of the State, 
or any defined district now or hereafter to be described and defined 
within the State of Texas, and which may or may not include towns, 
villages, or municipal corporations, upon a vote of a two-thirds ma- 
jority of the resident property taxpayers voting thereon who are 
qualified electors of such district or territory to be affected thereby, 
in addition to all other debts, may issue bonds or otherwise lend 
its credit in any amount not to exceed one-fourth of the assessed 
valuation of the real property of such district or territory, except 
that the total bonded indebtedness of any city or town shall never 
exceed the limits imposed by other provisions of this Constitution, 
and levy and collect such taxes to pay the interest thereon and 
provide a sinking fund for the redemption thereof, as the Legisla- 
ture may authorize, and in such manner as it may authorize the 
same, for the following purposes, to- wit: 

(a) The improvement of rivers, creeks and streams to prevent 
over-flows, and to permit of navigation thereof or irrigation thereof, 
or in aid of such purposes. 

(b) The construction and maintenance of pools, lakes, reser- 
voirs, dams, canals and waterways for the purpose of irrigation, 
drainage or navigation, or in aid thereof. 

(c) The construction, maintenance and operation of macadam- 
ized, graveled or paved roads and turnpikes, or in aid thereof. 

Section 53. The Legislature shall have no power to grant, or 



328 Civil Government 

to authorize any county or municipal authority to grant, any extra 
compensation, fee or allowance to a public officer, agent, servant 
or contractor, after service has been rendered, or a contract has 
been entered into, and performed in whole or in part; nor pay, 
nor authorize the payment of, any claim created against any county 
or municipality of the State, under any agreement or contract made 
without authority of law. 

Section 54. The Legislature shall have no power to release or 
alienate any lien held by the State upon any railroad, or in any 
wise change the tenor or meaning or pass any act explanatory 
thereof; but the same shall be enforced in accordance with the orig- 
inal terms upon which it was acquired. 

Section 55. The Legislature shall have no power to release or 
extinguish, or to authorize the releasing or extinguishing, in whole 
or in part, the indebtedness, liability or obligation of any incor- 
poration or individual to this State, or to any county, or other 
municipal corporation therein. 

Taken together these sections prevent diversion of 
public funds from the public purpose for which they 
were provided, and limit the powers of the Legislature 
to create debt. They absolutely prohibit lending the 
State's credit or the guarantee by it of debts due by 
others, whether natural persons or corporations. They 
also forbid the Legislature to release claims due to the 
State or securities held by it against any railroad com- 
pany. 

They further forbid the Legislature to authorize any 
political subdivision of the State; either to become surety 
for any private person, or association of persons, or cor- 
poration, or to give away any public money or thing of 
value. 

This provision as to becoming security has this excep- 
tion. By express action the Legislature may authorize 
a subdivision of the State to lend its credit in making 
enumerated improvements for the benefit of the public, 
provided the indebtedness is authorized by majority vote 



Government of the States 329 

of two-thirds of the voters within the district who pay 
taxes on property therein, and does not exceed one-fourth 
of the value of real property of the district, and is 
within the limits of indebtedness contained in other por- 
tions of the Constitution. 

Neither can the Legislature authorize any county or 
municipal authority to pay extra for services properly 
rendered it, nor to pay anything for services rendered 
under unauthorized agreements, or to release or discharge 
any one from the payment of any indebtedness owed 
to the State or a county or city or town. 

Municipal Corporations. Article XI of the Constitu- 
tion: 

Section 1. The several counties of this State are hereby recog- 
nized as legal subdivisions of the State. 

Sec. 2. The construction of jails, court houses and bridges, and 
the establishment of county poor-houses and farms, and the laying 
out, construction and repairing of county roads, shall be provided 
for by general laws. 

Sec. 3. No county, city or other municipal corporation shall here- 
after become a subscriber to the capital of any private corporation 
or association, or make any appropriation or donation to the same, 
or in any wise loan its credit; but this shall not be construed to 
in any way affect any obligation heretofore undertaken pursuant to 
law. 

Sec. 4. Cities and towns having a population of ten thousand 
inhabitants or less, may be chartered alone by general law. They 
may levy, assess and collect an annual tax to defray the current 
expenses of their local government, but such tax shall never exceed, 
for any one year, one-fourth of one per cent, and shall be collectible 
only in current money. And all license and occupation tax levied, 
and all fines, forfeitures, penalties and other dues accruing to cities 
and towns, shall be collectable only in current money. 

Sec 5. Cities having more than ten thousand inhabitants may 
have their charters granted or amended by special act of the Legis- 
lature, and may levy, assess and collect such taxes as may be au- 
thorized by law, but no tax for any purpose shall ever be lawful. 



330 Civil Government 

for any one year, which shall exceed two and one-half per cent of 
the taxable property of such city; and no debt shall ever be created 
by any city unless at the same time provision be made to assess 
and collect annually a sufficient sum to pay the interest thereon and 
create a sinking fund of at least two per cent thereon. 

Sec. 6. Counties, cities and towns are authorized, in such mode 
as may now or may hereafter be provided by law, to levy, assess 
and collect the taxes necessary to pay the interest and provide a 
sinking fund to satisfy any indebtedness heretofore legally made 
and undertaken; but all such taxes shall be assessed and collected 
separately from that levied, assessed and collected for current ex- 
penses of municipal government, and shall, when levied, specify in 
the act of levying the purpose therefor, and such taxes may be paid 
in the coupons, bonds or other indebtedness for the payment of 
which such tax may have been levied. 

Sec. 7. All counties and cities bordering on the coast of the 
Gulf of Mexico are hereby authorized, upon a vote of two-thirds of 
the tax-payers therein (to be ascertained as may be provided by 
law), to levy and collect such tax for construction of sea walls, 
breakwaters or sanitary purposes, as may be authorized by law, and 
may create a debt for such works and issue bonds in evidence 
thereof. But no debt for any purpose shall ever be incurred in any 
manner by any city or county unless provision is made, at the 
time of creating the same, for levying and collecting a sufficient 
tax to pay the interest thereon and provide at least two per cent as 
a sinking fund; and the condemnation of the right of way for the 
erection of such works shall be fully provided for. 

Sec. 8. The counties and cities on the gulf coast being subject 
to calamitous overflows, and a very large proportion of the general 
revenue being derived from those otherwise prosperous localities, 
the Legislature is especially authorized to aid, by donation of such 
portion of the public domain as may be deemed proper, and in such 
mode as may be provided by law, the construction of sea walls, or 
breakwaters, such aid to be proportioned to the extent and value 
of the works constructed or to be constructed in any locality. 

Sec. 9. The property of counties, cities and towns owned and 
held only for public purposes, such as public buildings and the sites 
thereof, fire engines and the furniture thereof, and all property 
used or intended for extinguishing fires, public grounds and all 
other property devoted exclusively to the use and benefit of the 



Government of the States 331 

public, shall be exempt from forced sale and from taxation; pro- 
vided, nothing herein shall prevent the enforcement of the vendor's 
lien, the mechanic's or builder's lien, or other liens now existing. 

Sec. 10. The Legislature may constitute any city or town a sep- 
arate and independent school district, Apd when the citizens of 
any city or town have a charter, authorizing the city authorities 
to levy and collect a tax for the support and maintenance of a 
public institution of learning, such tax may hereafter be levied and 
collected, if, at an election held for that purpose, two-thirds of the 
tax-payers of such city or town shall vote for such tax. 

Counties. Counties are created by the Legislature. 
They are recognized as political subdivisions of the State. 
The area required for counties under different circum- 
stances are given in the Constitution. Each organized 
county has its legally required officers and a county-seat, 
where all offices of the county officers must be kept, and 
where all district and county courts for the county must 
be held. It is out of the power of the Legislature to 
change this. 

Revenue. Counties are authorized to levy ad valorem, 
poll, and occupation taxes respectively, not to exceed 
one-half those levied by the State, for current expenses 
and future needs. Larger levies may be made to pay 
any debts created before 1875 which may be still unpaid. 

Counties cannot take shares of stock in corporations 
nor loan their credit. They cannot release or extinguish 
any debts due to them, though they are authorized to sell 
judgments against insolvent debtors. They cannot pay 
fees or grant extra compensation for services rendered 
them by any public officer. 

There are a number of county officers, but the most im- 
portant of these have already been considered in other 
connections. 

Cities and Towns. There are two ways of creating 
cities and towns in Texas. One is by special grant by 



332 Civil Government 

the Legislature of a charter applying only to the one 
city; the other is by general law passed by the Legis- 
lature under which the people of any territory having 
sufficient population can become incorporated. Communi- 
ties having 10,000 or more inhabitants can be chartered 
by either method; communities having less than that 
number only by the latter. In either case the city or 
town has only such powers and rights as the law creat- 
ing it gives to it. 

City Government. City and town governments are 
largely executive, and have but little legislative or judic- 
ial authority. The chief executive of a city is called the 
Mayor, the head of the constabulary department is usu- 
ally, called the City Marshal, and the others are police- 
men. The city business affairs are managed largely by 
the Aldermen or Councilmen and the Mayor. Not in- 
frequently in larger cities there are various Boards or 
Commissioners, having charge of different public utili- 
ties, as Commissioners for water, or light, etc. There are 
also city assessors and collectors of taxes, city treasurers, 
city clerks, etc. It has become quite customary in later 
years to have a city health department, with appropriate 
officers, whose duty it is to look after the general sani- 
tary conditions and to assist the State and county officers 
in caring for and protecting the public health. 

The small share of legislative authority which a city 
has is exercised by its Board of Aldermen, or City Coun- 
cil, as this Board is sometimes called. The matters upon 
which they may legislate are such as involve the well- 
being and good order of the particular locality, known as 
police regulations. They can prescribe only light penal- 
ties. In these matters the Mayor has the power of 
veto, similar to that exercised by the Governor in State 
legislation. Laws created by the Council are called or- 



Government of the States 333 

dinances. The judicial power of the city is vested in a 
Mayor's or Recorder's Court. It can try only criminal 
charges for violation of city ordinances. 

City and town governments are, strictly speaking, gov- 
ernments of delegated authority. A city can pass no or- 
dinance, enter into no business transaction, nor lawfully 
perform any act which it is not expressly or impliedly 
authorized to do by its charter. 

There are also express limitations on the powers of 
cities and towns contained in the Constitution. The ad 
valorem tax imposed by cities or towns chartered under 
general laws cannot exceed one-fourth of one per cent 
annually. 

Cities chartered by special act may levy such taxes as 
are authorized by the charter, provided the ad valorem 
city taxes for no year shall exceed two and one-half per 
cent on the taxable values of the city. 

Cities may contract debts and issue bonds for proper 
public purposes, designated in their charter. But no 
such debt shall be created unless at the time provision 
is made for paying all interest annually and for raising 
a sinking fund of at least two (2) per cent of the prin- 
cipal. 

Private Corporations. Article XII of the Constitution 
is as follows: 

Section 1. No private corporation shall be created except by gen- 
eral laws. 

Section 2. General laws shall be enacted providing for the cre- 
ation of private corporations, and shall therein provide fully for 
the adequate protection of the public and of the individual stock- 
holders. 

Section 3. The right to authorize and regulate freights, tolls, 
wharfage or fares, levied and collected or proposed to be levied and 
collected by individuals, companies or corporations for the use of 
highways, landings, wharves, bridges and ferries, devoted to public 
use, has never been and never shall be relinquished or abandoned 



334 Civil Government 

by the State, but shall always be under legislative control and 
depend upon legislative authority. 

Section 4. The first Legislature assembled after the adoption 
of this Constitution shall provide a mode of procedure by the At- 
torney General and district or county attorneys, in the name and 
behalf of the State, to prevent and punish the demanding and re- 
ceiving or collection of any and all charges, as freight, wharfage, 
fares, or tolls, for the use of property devoted to the public; un- 
less the same shall have been specially authorized by law. 

Section 5. All laws granting the right to demand and collect 
freights, fares, tolls or wharfage, shall at all times be subject to 
amendment, modification or repeal by the Legislature. 

Section 6. No corporation shall issue stock or bonds except for 
money paid, labor done, or property actually received, and all 
fictitious increase of stock or indebtedness shall be void. 

Section 7. Nothing in this article shall be construed to divest 
or affect rights guaranteed by any existing grant or statute of this 
State or of the Republic of Texas. 

The last two clauses of Section 17 and the first clause 
of Section 26 of the Bill of Rights are as follows : 

Section 17. * * * and no irrevocable or uncontrollable grant 
of special privileges or immunities shall be made; but all privileges 
and franchises granted by the Legislature, or created under its au- 
thority, shall be subject to the control thereof. 

Section 26. Perpetuities and monopolies are contrary to the 
genius of a free government, and shall never be allowed. * * * 

A private corporation is an agency, formed by the State 
and the persons who go into the corporation, for the pur- 
pose of carrying on some enterprise, usually a business, 
in which the State has a general and the individuals a 
special interest. 

Individuals cannot form corporations without author- 
ity from the State, and the State cannot form private cor- 
porations without the cooperation of the individuals in- 
terested. 

The method by which private corporations are now 
formed in Texas is regulated by a general law known 



Government op the States 335 

as a general enabling act. This law states for what pur- 
poses corporations may be formed, what must be done 
to bring one into being, what powers and rights it shall 
have, and what duties it shall owe. The Legislature has 
the power to alter or repeal charters at any time, 
If it alters a charter in any material respect, it cannot 
compel the corporation to go on under the amended char- 
ter, but it can compel it to stop business as a corpora- 
tion and wind up its affairs. The right to regulate 
charges for use of highways, landings, wharves, bridges 
and ferries is expressly reserved. AH corporations are 
forbidden to issue stocks or bonds except for value re- 
ceived therefor. It is made the duty of the Legislature 
to provide proper methods for forfeiture of charters of 
corporations for violations of law. 

Under the present law corporations may be created to 
carry on almost any kind of private business, though it 
must always be remembered that the purposes contained 
in the statute are the only ones for which corporations 
can be formed. 

Railroads and Railroad Companies. Article X of the 
Constitution provides: 

Section 1. Any railroad corporation or association, organized 
under the law for the purpose, shall have the right to construct and 
operate a railroad between any points within this State, and to con- 
nect at the State line with railroads of other States. Every railroad 
company shall have the right, with its road, to intersect, connect with 
or cross any other railroad; and shall receive and transport each the 
other's passengers, tonnage and cars, loaded or empty; without de- 
lay or discrimination, under such regulations as shall be prescribed 
by law. 

Sec. 2. Railroads heretofore constructed or which may hereafter 
be constructed in this State are hereby declared public highways and 
railroad companies common carriers. The Legislature shall pass 
laws to regulate railroad freight and passenger tariffs, to correct 
abuses, and prevent unjust discrimination and extortion in the rates 



336 Civil Government 

of freight and passenger tariffs on tlie different railroads in this 
State, and enforce the same by adequate penalties; and for the fur- 
ther accomplishment of these objects and purposes may provide and 
establish all requisite means and agencies invested with such pow- 
ers as may be deemed adequate and advisable. 

Sec. 3. Every railroad or other corporation^ organized or doing 
business in this State under the laws or authority thereof, shall 
have and maintain a public office or place in this State for the trans- 
action of its business, where transfers of stock shall be made, and 
where shall be kept, for inspection by the stockholders of such 
corporations, books, in which shall be recorded the amount of cap- 
ital stock subscribed, the names of the owners of the stock, the 
amounts owned hj them respectively, the amount of stock paid, 
and hj whom, the transfer of said stock, with the date of the 
transfer, the amount of its assets and liabilities, and the names and 
places of residence of its officers. The directors of every railroad 
company shall hold one meeting annually in this State, public notice 
of which shall be given thirty days previously, and the president or 
superintendent shall report annually, under oath, to the Comptroller 
or Governor, their acts and doings, which report shall include such 
matters relating to railroads as may be prescribed by law. The 
Legislature shall pass laws enforcing by suitable penalties the pro- 
visions of this section. 

Sec. 4. The rolling-stock and all other movable property be- 
longing to any railroad company or corporation in this State shall 
be considered personal property, and its real and personal prop- 
erty, or any part thereof, shall be liable to execution and sale in 
the same manner as the property of individuals; and the Legislature 
shall pass no laws exempting any such property from execution and 
sale. 

Sec. 5. No railroad or other corporation, or the lessees, pur- 
chasers or managers of any railroad corporation, shall consolidate 
the stock, property or franchises of such corporation with, or lease 
or purchase the works or franchises of, or in any way control any 
railroad corporation owning or having under its control a parallel 
or competing line; nor shall any officer of such railroad corporation 
act as an officer of any other railroad corporation owning or having 
the control of a parallel or competing line. 

Sec. 6. No railroad company organized under the laws of this 
State shall consolidate by private or judicial sale or otherwise with 



Government op the States 337 

any railroad company organized under the laws of any other State 
or of the United States. 

Section 7. No law shall be passed by the Legislature granting 
the right to construct and operate a street railroad within any 
city, town or village, or upon any public highway without first 
acquiring the consent of the local authorities having control of 
the street or highway proposed to be occupied by such street rail- 
road. 

Section 8. No railroad corporation in existence at the time of 
the adoption of this Constitution shall have the benefit of any 
future legislation except on condition of complete acceptance of all 
the provisions of this Constitution applicable to railroads. 

Section 9. No railroad hereafter constructed in this State shall 
pass within a distance of three miles of any county-seat without 
passing through the same, and establishing and maintaining a depot 
therein, unless prevented by natural obstacles, such as streams, 
hills or mountains; provided, such town or its citizens shall grant 
the right of way through its limits and sufficient ground for ordi- 
nary depot purposes. 

In connection with these provisions we must keep in 
mind Sections 17 and 26 of the Bill of Rights, and Sec- 
tions 4 and 5 of Article XII, given above, under the head 
of Private Corporations. 

The maintenance of public highways is one of the chief 
concerns of government. Opportunity to go from one 
place to another is essential to the life of society. Pub- 
lie roads for travel in private conveyances are main- 
tained by the counties and cities, but these do not suf- 
fice. The commerce of the world needs larger facilities 
for transportation. Steamboats and railroads are the 
most effective means yet devised. Hence, the State deals 
with railroads as public highways, and railroad com- 
panies as common carriers, granting to them special 
privileges and laying upon them special restrictions. It 
gives to these companies the power to exercise the right 
of eminent domain, under which to obtain rights of way 

22 



338 Civil Government 

for their trains, and then requires them to furnish rea- 
sonably efficient service at reasonable rates of charge, 
and without unjust discrimination among persons or 
places. 

This was attempted by general legislation, but the re- 
sults were not fully satisfactory to the people. They de- 
sired a more efficient means, and so they in 1890 amended 
the second section of the Article just quoted by adding 
the words, "and to the further accomplishment of these 
objects and purposes may provide and establish all req- 
uisite means and agencies, invested with such powers as 
may be deemed adequate and advisable.' ' This gave 
the Legislature very large discretion in the matter of 
railroad regulation. In its first session thereafter it 
created the State Railroad Commission. 

The State Railroad Commission. This is a body com- 
posed of three officers known as Railroad Commissioners, 
who are elected by the voters of the State, hold office 
for six years, and receive an annual salary of four thou- 
sand dollars each. 

Their duties, stated very generally, are as follows: 

First. It is a bureau of information as to the rail- 
roads within the State. In this line of its work it ob- 
tains, and makes a matter of permanent record, com- 
plete information as to all railroads in Texas. This in- 
formation covers the location of the lines, the original 
cost of construction, their present condition and value; 
all facts concerning rolling-stock and equipment, the 
manner and expense of operation, including all running 
arrangements with other lines; all stocks and bonds and 
other debts outstanding; the volume of freight and pas- 
senger business done, and the charges, general and spe- 
cial, made for service, and all other matters which prop- 



Government of the States 339 

erly enter into and form part of the business and opera- 
tion of the roads. 

Second. It has authority to make such rules and regu- 
lations as to the conduct of their business by railroads 
as shall "regulate railroad freight and passenger tariffs, 
correct abuses and prevent unjust discrimination and ex- 
tortion on the different railroads in this State." This 
power is clearly legislative in its nature. Under it the 
Commission fixes freight charges, requires the building 
and maintenance of stations, regulates railroad crossings, 
and makes a great many other rules relating to the bus- 
iness and operation of the roads. 

Third. It investigates alleged abuses or wrongdoing 
by the roads, and adjudges penalties against them if 
they are found guilty. It cannot enforce these penalties, 
but if they are not paid it can order suit brought in the 
proper court on the matter. Their conclusion is taken as 
making out the case against the road, and entitling the 
State to judgment, unless the railroad can produce tes- 
timony to show its injustice or illegality. 

It is evident that these powers are very great, and 
that they embrace matters belonging to each of the de- 
partments of Government which are usually required to 
be kept separate. This grouping of powers in the Com- 
mission is based on the authority conferred upon the 
Legislature in the concluding portion of Section 2, Ar- 
ticle X, as amended, quoted above. 

Removal From Office: Impeachment of High Crimes 
and Misdemeanors. Charges may be preferred by the 
House of Representatives before the Senate against any 
elective State executive officer, or against any judge of 
a district or higher appellate court. Such charges are 
tried by the Senate. It requires a vote of two-thirds 
of the Senators present to convict. The punishment is 



340 Civil Government 

removal from office and future disqualification to hold 
office. Persons convicted are still subject to indictment 
and trial. During the impeachment the officer is sus- 
pended from office. 

The judges of the appellate courts and of the district 
courts are also subject to removal by the Governor, "for 
willful neglect of duty, incompetency, habitual drunken- 
ness, oppression in office, and other reasonable cause which 
shall not be sufficient ground for impeachment," when 
convicted thereof by a two-thirds vote of each House. 
In such proceeding the accused is entitled to be advised 
of the charges against him, to offer testimony, and to 
argue his case, and record of the whole proceeding is 
made. 

A district judge is further subject to removal by the 
Supreme Court upon conviction by that tribunal of in- 
competency, partiality, oppression, or other official mis- 
conduct, or where his habits are such as to unfit him 
for the office, or for neglect of official duty. The charge 
in such case must be made under oath by at least ten 
lawyers who are licensed to practice in the Supreme 
Court, and who actually practice in the district court 
presided over by the accused judge. The accused is en- 
titled to trial on the charge. 

The Legislature is authorized to provide for removal 
of other officers by general law. Several statutes have 
been enacted under this. Most, if not all, of these pro- 
vide for removal by the district court after regular trial. 

Amendments to the Constitution. Amendments to the 
Constitution are prepared by the Legislature and by it 
submitted to the people for adoption or rejection. Be- 
fore any amendment can be submitted to the people it 
must pass each House by a vote of two-thirds, taken 
by yeas and nays and entered on the Journal. When they 



Government of the States 341 

are submitted to the popular vote they are published at 
length in numerous newspapers through the State. They 
may be submitted at a special election called for that 
purpose, but are frequently voted on at a general elec- 
tion. A majority of the votes cast regarding an amend- 
ment is necessary to its adoption. 

There are several other Constitutional provisions of 
importance, but they can be more easily considered in 
connection with the subjects to which they respectively 
relate, and are taken up in Part V, under Law. 

RECAPITULATION. 

Texas can tax every thing and person within its juris- 
diction, in any wise it sees fit, unless forbidden by the 
Federal Constitution. 

All taxes must be equal and uniform. Ad valorem 
taxes must be in proportion to the value of the thing 
taxed. Taxes can only be imposed for public purposes, 
and by general laws. 

General ad valorem taxes are limited to thirty-five 
cents on the one hundred dollars. 

Public funds can only be used for public purposes. 

Counties are the most important subdivisions of the 
State. They are made for the convenience of the peo- 
ple of the whole State in carrying out the State laws. 
They are supported by taxes levied by the commissioners 
court within the limits fixed by law. 

Cities and towns are political subdivisions made for 
the convenience of persons living within them. They 
are incorporated by the State under general enabling 
acts. If a city has 10,000 inhabitants or over, it may be 
given a special charter. 

A private corporation is an agency created by the 
State and private persons for the purpose of carrying out 



342 Civil Government 

designated purposes. They are now created by general 
enabling acts. The State may amend or repeal charters 
granted by it under the present corporation laws. 

Railroads in Texas are public highways, and railroad 
companies are common carriers. Such companies are 
subjected to special control by the State on account of 
the public nature of their business and the special ad- 
vantages allowed them. 

The special method adopted by Texas for the regula- 
tion of railroad companies is the State Railroad Com- 
mission. This consists of three Commissioners elected by 
the people of the State, and it has authority to ascer- 
tain all facts concerning railroads within Texas which 
are of interest to the public ; to fix railroad charges, and 
generally to supervise and regulate railroad operation 
in regard to State traffic. 

Impeachment is the general method provided in the 
Constitution for removal of State elective officers and 
judges of the district and higher courts. 

Judges of the appellate and district courts may also 
be removed by address. 

The Constitution may be amended by the Legislature 
submitting amendments to the vote of the people, and 
a majority of the vote of the people being in favor of 
the amendment. 

QUESTIONS. 

I. 1. To what uses did Texas put her public lands in the 
beginning of her history? 2. What is a land certificate, and how 
was particular land acquired under it? 3. What was necessary to 
acquire lands under the preemption laws? Under the law as to_ 
making homes on public lands? 4. How did Texas have her school 
lands surveyed? Can school lands be sold? 5. Why is it neces- 
sary to have records of land titles? What provision is made for 
keeping such records? 

II. 1. Give the substance of the Constitutional provisions 



Government op the States 343 

as to taxation as summarized in the text. 2. State generally the 
effect of the Constitutional provisions as to state revenues and debts 
due the State and counties. 

III. 1. What sources of revenue have counties? What limita- 
tions are there on the county's power to go in debt? 2, How may 
cities and towns be created in Texas? By whom are the business 
affairs of a city managed? Why do cities need very small legis- 
lative powers? What are local laws made by a city called? How 
are the revenues of cities provided? Are there any limits on the 
amount of taxes a city may levy? 

IV. 1. What is a private corporation? 2. How may they be 
formed? 3. What powers have they? 4. What control has the 
Legislature over them? 

V. 1. Why are public highways necessary to the life of a com- 
munity? 2. What is the need of railroads? 3. On what prin- 
ciple is the State justified in granting special privileges to railroad 
companies and exercising special control over them? 4. What is 
the State Railroad Commission? 5. Summarize the powers and 
duties of the Railroad Commission. 

VI. 1. Who are subject to impeachment? 2. What is an ad- 
dress, and who is subject to that? 3. By what other method may 
a district judge be removed from office? 

VII. 1. How may the Constitution be amended? 

THOUGHT QUESTIONS FOR REVIEW. 

I. 

1. Over what matters do new States coming into the Union have 
jurisdiction ? 

1. Why is it necessary to have minor political subdivisions of 

the States? Point out the differences in the relations between a 

State and its counties and those between the Federal Government 
and a State in the Union. 

2. In what respects do counties and cities differ from each 

other? 

III. 

1. What causes led to the Texas Annexation? 

2. Why was it necessary for the Convention of 1836 to provide 
two plans of government? 

3. Give briefly the principal characteristics of the government 
of the Republic of Texas. 



344 Civil Government 

IV. 

1. What motives prompted the adoption of the Common Law? 

2. What difficulties were there with regard to adopting it in its 
entirety? 

3. How did the Texans meet the situation? 

V. 

1. What changes necessarily took place in the sovereignty of 
the people of Texas and in their government, when she ceased to be 
a Republic and became a State in the Union? 

VI. 

1. How does the prevalence of restrictive provisions in the 
Constitution of 1876 show the influence of the Reconstruction expe- 
riences of the people? 

VII. 

1. What is there in the Constitution of Texas that shows that 
Texas is a Christian State? 

2. What is there in it that guarantees religious freedom to each 
individual? 

3. What is there that teaches of equality of right and oppor- 
tunity ? 

VIII. 

1. What is the highest political right? 

2. How can you reconcile the statement that ours is a govern- 
ment of, by and for the people, with the fact that an individual's 
right to vote is derived from the sovereign, and that the privilege 
is conferred upon only a minority of the people? 

3. What are the advantages of the ballot as a means of voting? 

IX. 

1. Why must different rules be applied to acts of a State Legis- 
lature and to acts of Congress in determining their constitution- 
ality? 

2. What are the advantages of having two Houses in the State 
Legislature ? 

3. Why does the Senate alone pass upon the fitness of appoint- 
ments made by the Governor? 

4. Why should the bills for raising revenue originate in the House 
of Representatives? 

5. What is the advantage of having a bill read three times be- 
fore its passage? 



Government of the States 345 

6. What advantages to the public arise from the Governor's veto 
power? 

X. 

1. What are the differences in the relations between the Gov- 
ernors and the heads of the executive departments of the State 
on the one hand and the President and his Cabinet on the other? 
Which is the better arrangement? 

2. Why does the State have both a Comptroller and a Treas- 
urer? 

3. What special reasons are there for a General Land Office in 
Texas? 

4. Why are the duties of the Attorney General more onerous 
now than in the past? 

5. Why does the State need a Superintendent of Public Instruc- 
tion, and which of his duties do you regard the most important? 

6. Consider carefully and come to a definite conclusion as to 
the need for each of the appointive State executive offices. 

XI. 

1. Why is a judicial department of government necessary? 

2. Make an accurate definition of jurisdiction as applied to a 
court. 

3. What is the necessity for courts of original jurisdiction? Of 
courts of appellate jurisdiction? 

4. What good purpose is subserved by making the district courts 
courts of general jurisdiction? 

5. Why are the most important cases put within the jurisdiction 
of district courts? 

6. What is the necessity for having courts of probate? Why 
should such courts meet often? 

7. Why does Texas need so many appellate courts? 

8. What is the reason for requiring felony cases to be prose- 
cuted by indictment? 

9. What are the differences between an examining trial and a 
final trial on a criminal charge? 

XII. 

1. In what way do restrictive provisions in a constitution pro- 
tect individuals? 

2. Is there anything in the Constitution of the United States 
which protects an individual against State legislation in follow- 
ing matters: (a) As to freedom of speech. (b) Seizures or 



346 Civil Government 

searches, (c) As to trial by jury, (d) As to due process of 
law. (e) As to bail and habeas corpus? 

3. What advantage is there in having the same guarantee in 
both the State and Federal Constitutions? 

XIII. 

1. What arguments are there in favor of public schools? 

2. Why should such a system include all grades of schools? 

3. What is the advantage of having a State Superintendent of 
Schools? 

4. What is the advantage of having teachers submit to examina- 
tion and procure certificates? 

5. Why is it desirable to have special taxes levied for the sup- 
port of schools, and why are the people of each school district per- 
mitted to determine this for themselves? 

6. What are the advantages and disadvantages of independent 
school districts? 

7. What advantage does the State receive from the maintenance 
of the common schools? Of the normal schools? Of the Industrial 
School for Girls? Of the Agricultural and Mechanical College? 
Of the State University? 

XIV. 

1. Why was it desirable at an early day for Texas to encourage 
immigration? What land laws did she pass for that purpose? 

2. Why were so many of the lands granted in the early days of 
the Republic not surveyed? How has this disturbed titles later? 

3. Why is it desirable to sell the school lands of the State? 

XV. 

1. W^hy cannot a State tax the salary of a Federal officer or the 
United States tax the salary of a State officer? 

2. Why can taxes only be collected for public purposes? 

3. Why is it desirable to have a maximum tax rate in a State 
Constitution ? 

4. Why are cities permitted to collect local taxes, and why is a 
maximum limit put on this tax? 

5. Why is it important not to let the Legislature remit debts due 
to the State or counties? 

6. Why are so many restrictions placed around railroad com- 
panies in the Constitution? 

7. Why is a Railroad Commission regarded as necessary? 

8. How can the combination . in this Commission of legislative 
and judicial powers be justified? 



PART FIVE. 
MUNICIPAL LAW- 
CHAPTER XXVII. 

THE NATURE, SUBJECT-MATTER, SOURCE, FOR- 
MATION, EVIDENCE, RESULTS AND CLASSI- 
FICATION OF MUNICIPAL LAWS. 

Definition of Municipal Law. There are a great many 
kinds of law, as the word is used in common speech. 
We speak of Divine Laws, of Moral Laws, of Natural 
Laws, of Social Laws, and others. Though each of these 
has its influence upon and in a way enters into the for- 
mation of Municipal Law, none of them, nor any com- 
bination of them, of itself constitutes Municipal Law. 
"Municipal" primarily indicates pertaining to a walled 
city. Walled cities were once the most stable and ef- 
fective governments the world knew, and hence, came to 
represent very aptly governmental authority. In this 
derivative sense we still use the adjective as applied to 
Law. A municipal law, then, is one which originates 
with sovereignty, and proceeds from it through govern- 
mental agencies to all those subject to control by it. It 
is the will of the sovereign represented in continuous 
rules of conduct, determining for all subject to the sov- 
ereign what they must and what they must not do ; the 
rules which sovereignty makes whereby to control those 
whom it has the right to command. 

Subject-Matter of Law. It is clear from these state- 
ments that the law regulates persons and their behavior, 
or conduct. It is these with which it deals. In its pri- 
mary, or, as they are called, its substantive regulations. 



348 Civil Government 

it declares what persons shall do or shall not do, and 
what penalties shall be imposed for disobedience. In its 
secondary or adjective regulations it provides the means 
and methods of inflicting penalties when they are de- 
served. 

Source of Municipal Law. Municipal law in repub- 
lican governments has its origin in the judgments and 
consciences of the people. The sober, second thought of 
the people is the source of all law which abides; and no 
rule of conduct which does not abide is worthy to be 
called law. But this public sentiment and opinion is not 
law so soon as it springs up. It lacks authoritative form 
and sanction. The opinion must be transformed into 
law by proper political measures. 

Formation of Municipal Law. These processes are of 
two recognized or regular kinds: first, enactments by 
the Legislature ; second, recognition by the Courts. 

If the Legislators elected by the people are really 
representative of them, they will have the same opin- 
ions and judgments as their constituents, and these will 
be expressed in the laws enacted. This is the simplest 
and most direct form of law-making. Laws thus made 
cover a great many of the facts and conditions which 
arise in life. In early times there were no regular legis- 
lative bodies, and many matters were unregulated by 
statutory law. When cases arose before the courts in- 
volving these matters they would be decided according 
to the customs existing among the people in similar 
cases. These customs were but the expression of pub- 
lic opinion, as they were the rules by which the great 
majority governed themselves when left to their uncon- 
trolled choice of conduct. These decisions of the courts 
thus growing out of the customs of the people in 
turn began to be taken as evidence of customs recog- 



Municipal Law 349 

nized in them, so that the fact that a certain matter 
had been decided in a certain way in former cases came 
at length to be regarded as convincing proof that the 
custom was in accord with the decisions. By this process 
the opinions of the majority passed from simple customs 
into customary laws, usually called the Common Law. 
When a number of these decisions of the courts were 
studied together it would be found that the same idea of 
right and honsety and public conscience which led to 
one of them led to others, and that taken together they 
represented certain general ideas and beliefs of right and 
wrong. These general ideas and beliefs are called prin- 
ciples, and, having been carried through custom into law, 
they are called legal principles. 

When a case arose on matters regarding which there 
had been decisions these were followed. If a case arose 
which was different from all those previously adjudged, 
the judges would seek through their former decisions to 
find the general principles which those cases expressed, 
and would apply these previously recognized principles 
to the new facts, and decide according to them. This is 
a very brief yet fairly correct explanation of the origin 
of Common Law. 

Evidences of the Law. The evidences of constitutional 
law as made by constitutional conventions are in the con- 
stitutions which they form and propose. The evidences 
of the law as enacted by legislatures are in the records 
of these bodies, or the authenticated copies of these laws 
thus enacted, published by the government. We know 
and speak of these as statutory or written law. 

The evidences of customary or common law are the de- 
cisions of the courts in adjudged cases and the published 
reports of these decisions. Hence, the evidences of the 
law are the constitutions adopted by the people, the stat- 



350 Civil Government 

utes passed by the legislatures, and the decisions of the 
higher courts. 

The Results of Law. The result of proper municipal 
law and its enforcement is to define and protect legal 
rights of the public and of individuals, and thus to es- 
tablish and secure the public peace and the liberty of the 
people. The process may be illustrated in this way: In 
a community without law each man would deal with his 
neighbor just as he chose, so far as he had the power to 
enforce his choice. The stronger could overpower the 
weaker and make him serve him, or he could imprison 
or kill him, as he might prefer. The weaker would have 
no choice, or rather no protection in such choice. He 
could not have legal rights. But when a power from 
without intervenes and says to both the weak and the 
strong, you must each be governed by my judgment and 
my choice — I will say how you shall behave toward one 
another — then the strong must cease his oppression and 
the weak be allowed to enjoy the benefits of restraint 
upon his opponent. The intervening power in munici- 
pal affairs is sovereignty, and the express judgment and 
choice of sovereignty is law. To illustrate more spe- 
cifically, if at the time the sovereign power asserted itself 
one of the strong was holding in subjection one of the 
weak, and the sovereign intervened by enacting and en- 
forcing a law that all slaves must be set free, we readily 
see that the law, by declaring its rule of conduct for the 
master and by compelling him to obey, had given liberty 
to the slave. The process is similar in all cases. Putting 
restraint on the conduct of others protects and gives 
rights and freedom to those for whose benefit the re- 
straints are imposed. The enjoyment of just rights on 
equality with others is Civil Liberty. 



Municipal Law 351 

Classifications of Municipal Law: Criminal and Civil 
Law. One of the great classifications of law is into Crim- 
inal and Civil. 

Criminal Law is the mass or sum of the rules which the 
sovereign makes to protect the public. Civil Law is the 
mass or sum of the rules which sovereigns make to pro- 
tect individuals in their rights. It very frequently hap- 
pens that the public and some private individual are in- 
terested in the same thing or matter. When this is so 
there will be both Criminal and Civil laws regarding it. 
Take the ownership of property. The public is justly 
interested in the protection of property. A community 
in which no one could own anything could not be a pros- 
perous or a happy one. Hence, there are criminal laws 
protecting property. But every individual is specially 
interested in the things which he owns, and needs and is 
entitled to protection regarding them. Hence, there are 
laws protecting him in his private rights of property. 
To illustrate: If one man has a horse and another steals 
it, this is a crime against the public for which the thief 
may be punished. It is also a violation of the property 
rights of the owner of the horse, and for which he can 
have redress under the civil law. 

Division of Civil Law. Civil Law is subdivided into 
two great divisions, which speaking roughly we may call 
Contract Law on the one hand and Non-Contract, or 
Tort Law, on the other. 

Contract Law is the mass or sum of those rules which 
regulate the making, construing, and enforcement of 
agreements. Non-Contract or Tort Law is the mass or 
sum of those rules which regulate the private legal rights 
and duties of men in the absence of agreement. For ex- 
ample : If A meets B and asks him to loan him fifty dol- 
lars, promising to pay him back in a month, and B agrees 



352 Civil Government 

to let him have the money and does so, this is an agree- 
ment, and, speaking generally, A will be bound by his 
promise to B to repay the money. This binding promise 
is a contract. All the rules regulating the rights and 
duties of A and B growing out of that agreement are 
matters of Contract Law. Again, A meets B and strikes 
him and injures him. Here there is no agreement be- 
tween the parties about the matter. A never promised 
B either that he would or would not strike him. The 
actions of the parties have no relation to agreement in 
any way. If the legal nature and effect of these acts is 
to be determined, we would have to examine the rules 
of Non-Contract or Tort Law. By ascertaining the facts 
in detail, and judging them by the rules of Tort Law, 
we could decide whether A had acted lawfully or un- 
lawfully. If he acted lawfully, he would not owe B any 
damages. If he acted unlawfully, B would be entitled 
to have A pay him what he had suffered and lost as 
direct results of the blow. 

Same Act as Affected by Different Kinds of Law. We 
must not have the idea that the separation of the law 
into classes is so complete that the same act can not be 
within the application of more than one of these sets of 
rules. We have just seen that the same act of taking 
the horse was both a violation of the criminal law and 
of the law of torts. The same act may be a crime, a 
tort, and a breach of contract. This is not often so, 
but occasionally it is. There is nothing in the nature or 
classification of law to prevent it. 

Substantive and Adjective Law. Law is also divided 
into substantive and adjective. This division extends 
through all the classes we have considered above. That 
is, there is substantive criminal law, contract law, and 



Municipal Law 353 

tort law; and there is adjective law of each of these 
classes. 

Substantive Law consists of all those rules which de- 
fine legal rights and determine the redress which may be 
obtained for their violation. 

Adjective Law consists of all those rules which pro- 
vide means by which to secure the redress which the sub- 
stantive law allows, and which regulate the methods of 
obtaining it. 

Thus, the laws which define ownership of property, and 
which determine to what extent an owner shall enjoy 
the use and benefit of the thing owned, and the remedy 
he is entitled to, if his right is molested, are substantive. 
The law organizing the court to which the owner must 
apply to obtain the provided remedy, and the rules of 
procedure in that court which control the trial of the case 
and the enforcement of its judgment, are adjective. 

Further Classifications of Municipal Law. There are 
a number of other classifications of Municipal Law, which 
result in the frequent use of many qualifying or explana- 
tory terms in connection with it. It is not expedient to 
take these up in detail, but a few of them should be dealt 
with briefly. 

Written Law is all law which has proceeded from direct 
action of legislative power. It includes constitutions or- 
dained by the people, and statutes enacted by the legis- 
lature. 

Unwritten Law includes all the law which has grown 
up from the customs of the people and their adoption and 
enforcement through the courts. 

Common Law means, in some uses, the whole body of 
the unwritten law. When used in contrast with Equity 
it means so much of the Unwritten Law as was enforced 
23 



354 Civil Government 

in and through the ancient English courts which existed 
before the establishment of Courts of Equity. When used 
in contrast with Roman Law it means the whole body 
of English jurisprudence. 

Equity is that system of law which is administered 
through Courts of Equity, or Chancery Courts, as they 
are also called. It is of much later origin than the Com- 
mon Law, and is a system built up in England, and 
adopted in the larger part of America, for the purpose 
of recognizing and enforcing rights which the ancient 
common law ignored, and of giving remedies which could 
not be gotten from Common Law Courts. Its rules are 
supposed to have originated in the conscience of the King, 
and are announced by the Chancellor as the representa- 
tive of the King. In course of time, however, these rules 
have become fixed by precedent, and are now as well 
settled as and can no more be enlarged or departed from 
than the doctrines of the Common Law. 

Roman or Civil Law is the system of law established 
by Rome in the days of her supremacy, and perpetuated 
with various modifications through and in the nations 
of central, southern and southwestern Europe and their 
American dependencies. It is of peculiar interest in 
Louisiana, Texas, New Mexico, Nevada and California, 
as it had been in force in these sections before their 
settlement by Anglo-Americans, and their laws are now 
largely influenced by it. The term Civil is often used 
to indicate Roman Law. This use of the word must be 
kept in mind and distinguished from its meaning when 
used in contrast with Criminal Law, as is done in one of 
our preceding paragraphs. 

Military Law is that which governs the armed forces 
of the United States; that is, the standing army and 
navy, and the militia when in active service. It has no 
application to any one not in the military service. 



Municipal Law 355 

Martial Law is that which is enforced by military com- 
manders in the government of communities in which for 
some cause the civil officers and courts can not perform 
their duties. It is a substitute for ordinary municipal 
law, to prevent temporary anarchy, which would other- 
wise exist. It should never be continued longer than is 
made necessary by the existing conditions. 

RECAPITULATION. 

Municipal law consists of the rules made by sovereignty 
whereby to control those whom it has the right to com- 
mand. 

The subject-matter of municipal law is persons and 
their conduct. 

Municipal law in a republic has its origin in the com- 
mon judgment and sense of right of the people. 

Municipal law is formed by direct act of the people, 
as in adopting a constitution, or by the customs of the peo- 
ple, recognized by the courts. 

Municipal law, by defining and protecting just rights, 
develops liberty. 

Criminal law consists of the rules which sovereignty 
makes in order to preserve good order and protect the 
rights of the public. 

Civil law consists of the rules which sovereignty makes 
to protect the private rights of individuals. 

Contract law regulates the making, construing and en- 
forcing of agreements. 

Tort law regulates the privileges, rights, and duties of 
individuals which do not depend directly on contract. 

Substantive law determines what rights a person has 
under the law. 

Adjective law provides the means and regulates the 
proceedings by which substantive rights are protected. 



356 Civil Government 

Written law includes all constitutions and statutes. 

Unwritten law includes all law originating in custom 
and declared by the courts. 

Common law has three meanings: first, all English 
jurisprudence; second, all the unwritten English law; 
and, third, the law administered in law courts as dis- 
tinguished from equity. 

Equity includes the rules of right and wrong enforced 
through courts of chancery, and is supposed to be based 
upon the King's conscience. 

Soman law is the laws of Eome as modified by the 
various Latin peoples. 

Military law is that which controls the army and navy. 

Martial law is that which is administered by officers 
of the army and navy in a community under their con- 
trol, for the purpose of preventing disturbances and 
crimes. 

QUESTIONS. 

I. 1. Define municipal law. 2. Why is not public opinion law 
when it is first formed? 3. How is the unwritten law made? 4. 
What are the results of the establishment and enforcement of good 
laws? 

II. 1. Why is it desirable to divide law into classes? 2. Name 
the different classifications, and explain each. 3. Give an example 
of an act which is contrary to both criminal and tort law. 

III. 1. What three names does common law have? 2. What is 
equity, and what was its origin? 3. Why is knowledge of Roman 
law important in Louisiana, Texas and California? 4. What are 
the differences between military and martial law? 

CHAPTER XXVIII. 

LEGAL RIGHTS AND THEIR CLASSIFICATION. 

Importance of Legal Rights. If it is true, as hereto- 
fore stated, that the purpose and result of good govern- 



Municipal Law 357 

ment is to determine and protect legal rights, and thus to 
establish public order, justice and liberty, the importance 
of legal rights is apparent, and some understanding of 
them most desirable. 

Definitions of Legal Eights and Duties, and Their Re- 
lations to Each Other. A legal right is a claim or ad- 
vantage the enjoyment of which is protected by law. 
The protection afforded to a right is never absolute. It 
extends only so far as is consistent with the general 
good of society, and as the just and equal protection of 
the rights of other persons will permit. Even the legal 
right to life is not absolute. The government may de- 
mand military service of its citizens, even though this 
involves danger to their lives ; or the individual may for- 
feit his life by serious violation of law and may be exe- 
cuted for his offense. 

The protection which the law gives to a legal right 
comes largely through the control which the law exer- 
cises over other persons regarding the protected claim 
or advantage. Thus the right which an owner has in 
his property is enjoyed principally by reason of the law 
requiring all others to leave the thing owned by him un- 
molested, and thus give him opportunity to use and en- 
joy it. This legal obligation resting on one person to 
respect and leave unmolested the rights of others is a 
legal duty. There can be no legal right unless some 
one is subjected to the legal duty to respect it, and there 
can be no legal duty unless some one has a legal right 
which the one owing the duty is bound to respect. A 
legal right and the legal duty of others to observe it are 
correlative. 

Classification of Legal Rights. The claims and advan- 
tages in which individuals are protected by law are 
necessarily very numerous, and very different in nature 



358 Civil Government 

and consequence. This renders orderly arrangement of 
them imperative and difficult. As a result a great many 
classifications have been made, and a great many dis- 
tinguishing words have been applied to different rights 
to indicate the different classes into which they have been 
separated. "We will adopt the classification which is 
simplest and most helpful in understanding the law in 
its present state. 

On this basis legal rights are classified as follows : Per- 
sonal Eights, Rights against Particular Persons, Rights 
in Persons, Rights in Things, Political Rights, Civil 
Rights and Remedial Rights. 

Personal Rights. These are those rights to which a 
person is entitled simply as a member of the human race 
and of society. They include bodily security; security 
to the mind; security to the moral nature; freedom of 
action; the right to contract; the right to acquire, hold 
and dispose of property; the right to carry on business; 
the right to form special relations; and freedom of 
thought, of conscience, of speech, and of reputation. 

The individual is not protected to the same extent 
in regard to all these; but, so far as legal protection is 
extended, the claim or advantage is a legal right. All 
these rights exist in behalf of the person having them 
against the whole world. Every one must respect them. 
Some of these rights we will consider briefly. 

Protection to the Body. The sovereign recognizes that 
the public is interested in the bodily well-being of every 
person, and, hence, there are many criminal laws made 
to punish injuries done to the body. The offenses thus 
punished extend from assault and battery through all 
intermediate grades to murder in the first degree. A 
battery is the unlawful application of force to the body 
of another with intent to injure him. An assault is a 



Municipal Law 359 

real attempt to commit a battery. If an assault or bat- 
tery is of a specially serious nature, it is punished more 
severely. 

Homicide is taking human life. All homicide is not 
unlawful. An officer of the law may take life in the 
discharge of his official duty. A private person may kill 
another in proper self-defense or by accident. No one 
of these is a violation of law. Notwithstanding the 
foregoing facts, homicide is usually a very serious of- 
fense, with severe penalties attached. If it takes place 
under the influence of a sudden passion arising from an 
adequate cause, but which still is not sufficient to justify 
it, it is called manslaughter, and punished by a relatively 
short term in the penitentiary. If it is committed ma- 
liciously, it is murder, and is punished by longer impris- 
onment or by death. Besides the protection afforded the 
body under criminal law, there is a broader recognition 
of the individual's rights in his own body. This is pro- 
tected by Tort Law. 

In dealing with the body from this point of view we 
may say that the very general rule is that the application 
of force by one person to the body of another is unlaw- 
ful, and will subject the person applying the force to 
suit by him to whom it is applied. This rule is subject 
to five exceptions. 

First. The use of force is not unlawful and actionable 
when applied in obedience to the commands of the law, 
as when an officer arrests a criminal under a proper 
warrant. 

Second. When it is applied in proper self-defense. 

Third. When it is applied reasonably by one having 
special authority to do so, as by a parent in the moderate 
chastisement of his child. 

Fourth. When it is applied under the license of the 



360 Civil Government 

law, or of the person subjected to it, as in case of the 
ordinary contacts of life, or by a surgeon to a patient, 
and, 

Fifth. When it is the result of an inevitable acci- 
dent; that is, where it occurs without any legal fault 
on the part of any one, as in case of a cyclone blowing 
a passenger car over and injuring passengers. 

Freedom of Action. The State also protects the indi- 
vidual in his freedom of action. No man is allowed to 
go where he pleases, but sovereignty claims and exercises 
the exclusive authority to determine for itself to what ex- 
tent each individual shall be restrained. 

Any restraint imposed by one individual upon an- 
other, beyond or in addition to that commanded or per- 
mitted by law, is an invasion of his legal right, and pun- 
ishable criminally, and will support a civil action. This 
wrong is called false imprisonment. 

Eight to Contract. This is the privilege of acquiring, 
modifying or relinquishing other legal rights by agree- 
ment. 

An agreement is a meeting of the minds of two or 
more persons, each having the same understanding and 
the same will, concerning the matter involved. It em- 
bodies both understanding and will. If the parties do 
not understand the matter alike, there can be no agree- 
ment. If, for example, one person has two horses, and 
offers to sell a certain one of them, but the person to 
whom the offer is made thinks that it applies to the other, 
and accepts it, there would be no sale. The owner has 
not sold the horse he intended to part with, because the 
other did not consent to buy it; and the purchaser has 
not bought the other horse, because the owner did not 
consent to sell it. This is a case of mistake. 

Let us change the illustration somewhat. Suppose that 



Municipal Law 361 

the owner of a horse finds that he is wild and vicious, and 
henee is of little value. He is not satisfied to take the 
real value for him; so, when he goes to sell him he 
claims that he is gentle and reliable, and by such false 
statements induces another to buy him. Here the parties 
both are dealing with the same horse. They have in mind 
the same price, but they do not alike understand the qual- 
ities of the horse. The seller knows that he is vicious. 
The buyer has been made by the seller to believe that 
he is gentle. There is no genuine agreement which the 
law will enforce against the buyer. This is a case of 
fraud. Both the foregoing illustrations show failure of 
mutual meeting of the minds of the parties. 

Let us take another illustration. One person makes 
an unjust claim to property which really belongs to an- 
other. He goes to the real owner, presents a pistol, and 
forces him to sign a paper setting out that the property 
belongs to the wrongful claimant, and promising to de- 
liver it to him. Here both persons understand the facts 
alike, but there is no meeting of their wills. The one 
who signs the paper through fear does not really agree 
to the facts set out in it. He only signs it to prevent a 
greater evil, his serious bodily hurt. The paper is not 
an agreement. This is an example of coercion, or duress, 
operating not on the understanding, but on the will. 

These examples show that mistake, which is innocent 
misunderstanding of the facts; or fraud, which is decep- 
tion of one party by another as to material facts; or 
coercion, which is the overcoming of the will of one of 
the parties by force or threats, will prevent true agree- 
ment. 

A legal, enforcible agreement is called a contract. The 
right to enter into such agreements is the right to con- 
tract. 



362 Civil Government 

This right is subject to limitations. These limitations 
relate to four matters connected with or involved in 
agreements. First, there must be competent parties to 
the agreement. An agreement by an insane person or 
an infant cannot ordinarily be enforced. Second, there 
must be consideration, real or implied by law. A con- 
sideration is something of value which the promisor gets 
or is to get, or something of value with which the prom- 
isee parts or is to part. A promise to make a gift is not 
enforcible by law. Third, the agreement must not be 
contrary to law. If one person promises to pay a certain 
sum of money for killing another, and the promisee kills 
the third person, he cannot sue for and recover the money 
which was promised him. Fourth, the agreement must be 
in the proper form. True, in most instances agreements 
may be made verbally, but the law may require them to 
be in writing; and, in those instances in which it does 
this, promises made in other ways cannot be enforced. 

If an agreement is genuine and has the foregoing char- 
acteristics, the law will recognize and compel the parties 
to stand by it. By such recognition and enforcement the 
law protects the claims which each party to the agree- 
ment has against the other by reason of it. This makes 
these claims legal rights. 

The right to contract is one of the most important and 
essential which men enjoy. Without it no business could 
be carried on, and society could not possibly sustain it- 
self. 

The Right to Acquire, Hold, and Dispose of Property. 
This right relates to the capacity to own things. It is 
not actual ownership of any particular thing which is a 
property right, but the right to own. If a pupil owns a 
book, the right he has in that book is a property right. 
If the teacher tells him he must buy a book, the capacity 



Municipal Law 363 

in the pupil to buy is a personal right in him. He has this 
right to buy while he is on the way to the bookstore, 
though he does not then own any book at all. He buys 
a certain book, and the law recognizes his right to keep 
the title to it. This right to retain title to the book is 
a personal one also. He subsequently desires to sell the 
book. He has the right to do so. This is the personal 
right of disposition. If he finds another pupil who buys 
the book, the former owner, in selling the book, exer- 
cises his personal right of disposition of the book. 

The property right of ownership of particular things 
will be considered later. This right to acquire, hold and 
dispose of property is also limited by law. A man can 
only acquire property in legal ways. He can own only 
certain kinds of things, and can dispose of them only ac- 
cording to law. 

Right to do Business. The right to do business grows 
out of the right to contract and the right to acquire, 
hold and dispose of property. Doing business is only 
exercising these two rights in connection with each 
other. As each of these rights is limited, the right re- 
sulting from their combination is also limited. The State 
can restrict the kinds of business in which men may en- 
gage, regulating some and prohibiting others. 

Freedom of conscience and of speech have been con- 
sidered in connection with the Bills of Eights of the 
United States and of Texas. 

Eight to Reputation. Character is what a man really 
is, reputation is what he is believed to be. Every man 
is legally entitled to a reputation equal to his character. 
No one should make a false defamatory statement against 
him. If he does, it is actionable. To this there are two 
exceptions, called privileged communications. The first 
exists as to the false statements made bv an officer of 



364 Civil Government 

the Government in the discharge of his official duty, as 
by a Legislator in the course of a debate. This privilege 
has no limitations, and is called absolute. The second 
exists as to statements by private persons made in good 
faith on a subject on which it is his duty to speak, which 
statement he believes to be true, but which proves to be false. 
This privilege is limited. If the statement is made in bad 
faith or with malice, the exception does not apply and the 
person making the statement is liable for the damages. 

Rights Against Particular Persons. In calling the 
rights just considered personal, the word "personal" re- 
fers to the person who has the right. The word "person" 
in the class now being considered refers to the one who 
owes the duty to the one who has the right ; for example, 
one person loans another a sum of money, which the 
latter promises to repay at a certain time. By this 
transaction the lender acquires a legal right to demand 
and receive the money from the borrower when the 
payment is due, and the borrower assumes the correla- 
tive duty of making such payment. This right which 
the lender has to get back his money is not one which 
he can enforce against all persons, but it exists only 
against the borrower. It is therefore called a right 
against a particular person. 

These rights usually arise from contract. They in- 
clude the whole of those important and varied rights 
which one party to a contract has against the other party, 
because of the unperformed promises contained in the 
agreement. Every legally enforcible agreement results 
in one or more such rights. A few of these rights against 
particular persons exist without contract, as the rights 
which a parent has against his child, or a child against 
a parent. These are rights of imperfect obligation, which 
will be considered later. 



Municipal Law 365 

Rights in Persons. This is a new classification of 
rights. It is not yet accepted by all, but it represents ac- 
curately certain classes of claims which cannot be placed 
conveniently or serviceably in any other class. These 
are claims and advantages which certain persons are 
recognized by law as having to and in the personal qual- 
ities and efficiency of others. They can only exist where 
there are special relations between the persons, such as 
parent and child, husband and wife, master and servant, etc. 

A parent is legally entitled to the wages earned by his 
child during the latter 's minority. He therefore receives 
advantages from the qualities in the child which enable 
him to earn wages. The law recognizes this fact, and if 
any other person unlawfully destroys or impairs these 
qualities in the child the parent thereby sustains legal 
wrong, and may sue for the loss occasioned him. On the 
other hand, the child is entitled to support and education 
from the father. If any one unlawfully kills the father, 
this under many modern statutes is a legal wrong against 
the child for which he may maintain a suit. These ex- 
amples illustrate rights which one person has in another. 

Rights in Things. These are rights of property usually 
expressed by the term ownership. Ownership in the 
fullest sense includes the right to possess, use, enjoy, 
profit by, modify and dispose of the thing owned. Thus, 
if a man owns a house, he can occupy it, and use it him- 
self; can rent it to another and collect the rents; can 
change it to suit his own ideas, or he can sell it. This is 
the fullest title which the law knows. He who has such 
a title is called the general owner. In the illustration 
we spoke of the owner renting the house. By that is 
meant that the general owner of the house, by a contract 
with some one else, can permit that person to have the 
use and enjoyment of the house which belongs to the 



366 Civil Government 

general owner. This does not end the title of the gen- 
eral owner, but it limits it and gives the renter rights 
of property in the house. These rights of the renter are 
called special ownership. Special ownership is some one 
or more of the rights embraced in general ownership, 
existing for a limited time or to a limited extent, in one 
not the general owner. Almost anything can be owned. 
The exceptions usually given are human beings, air, 
natural light, and running water. 

Political Eights. These are rights to participate in the 
exercise of political power. The most usual of them are 
the right to discuss political questions, to petition gov- 
ernmental officers, to vote, and to hold office. These 
have been sufficiently discussed in other connections. 

Civil Rights. These are rights to equal protection of 
the law, to due process of law, and equal enjoyment of 
public privileges. 

Remedial Rights are rights to remedy which arise in 
behalf of one having a right of any of the classes dis- 
cussed above, whenever such right is invaded. It is a 
right to a remedy for the violation of a right of any 
other kind. Thus, if one man owns a piece of property 
and another takes it, the owner at once is entitled to a 
remedy against the wrongdoer for the injury done him. 

RECAPITULATION. 

A legal right is a claim or advantage which the law 
protects. 

A legal duty is an obligation which the law enforces. 

This protection and enforcement are accomplished by 
control of the conduct of individuals. 

Personal rights are those which one has as a member 
of society. 

The body is protected by both criminal and tort law. 
The general rule is that the use of force by one person 



Municipal Law 367 

upon the body of another is unlawful. There are five 
exceptions in tort law, and more in criminal law. 

The law imposes such restraint on the freedom of ac- 
tion of the individual as it regards necessary to protect 
the public and private persons, and it is unlawful for in- 
dividuals to add to these. 

The right to contract is the right to create, modify or 
destroy legal rights by agreement. This right also is 
limited by law in important respects, relating to parties, 
considerations, form and purpose. 

Mistake is mutual misunderstanding of the parties. It 
prevents agreement. 

Fraud is deception resulting in the disadvantage of 
the person deceived. It entitles the deceived person to 
avoid the agreement. 

Duress or coercion is the overpowering of the will of 
the person coerced so that he signifies assent to that to 
which he does not really agree. It has the same effect 
as fraud. 

The right to acquire and hold and dispose of property 
is the recognized capacity to become the owner of prop- 
erty, and to enjoy and use it, and pass the title to others. 

The right to do business is subject to control of law. 
The sovereign can regulate different businesses, and, 
if they are harmful to the public, can prohibit them. 

Reputation is what one is supposed to be. It should 
always be equal to character. 

Telling a falsehood reasonably calculated to bring one 
into disrepute is defamation. If the statement is in writ- 
ing, or print, it is called libel. If it is made orally, or 
by other transient means, it is slander. Some false state- 
ments are privileged absolutely, and some conditionally. 

Rights in persons are claims or benefits which one per- 
son has in the life or capacities of another. 



368 Civil Government 

Rights in things are ownership of some kind. General 
ownership includes the right to possess, use, modify, profit 
by and dispose of the thing owned. 

Special ownership consists of one or more of the rights 
going to make general ownership, enjoyed for a limited 
purpose or limited time. 

Political rights are rights to share in sovereign power 
or its exercise. 

Civil rights are rights to equal enjoyment of public 
conveniences and privileges. 

Remedial rights are rights to redress for violation of 
any of the foregoing rights. 

QUESTIONS. 

I. 1. What is a legal right? 2. Are such rights absolute? 
Why? 3. How may the right to life be forfeited? 4. How can 
control of other persons result in establishment of legal rights? 

II. 1. Enumerate the principal kinds of legal rights. 2. What 
are included in personal rights? To what extent does the law 
protect the body. 3. What is the difference between the legal 
capacity to acquire property, and actual ownership of a particular 
thing? 4. What is the right to contract? Is it of any im- 
portance in the business world? Why? In what four respects does 
the law limit the right to contract? 5. What is the difference between 
denying religious liberty and in punishing for acts committed in 
the name of religion? 6. What is the difference between char- 
acter and reputation? To what reputation is a person entitled? 
Are there any exceptions? 

III. 1. What are the differences between rights against par- 
ticular persons and rights in particular persons? 2. If a child 
is injured so he cannot work, who loses his wage-earning capacity? 
3. Who suffers the physical pain caused by the injury? 4. Ought 
the same person to collect for these two items? Why? 

IV. 1. What is general ownership, and what component rights 
does it include? 2. What is special ownership of land? 3. Is the 
interest of the bailee in the thing bailed general or special owner- 
ship? 

V. 1. Name the principal political rights. 2. Give an example 
of a civil right. 3. Of a remedial right. 



Municipal Law 369 



CHAPTER XXIX. 

SOME OF THE MORE IMPORTANT LEGAL DOC- 
TRINES AND INSTITUTIONS. 

Persons. The law deals with persons and their con- 
duct, and these often affect and are affected by things. 
Persons are of two kinds: natural, which includes all 
human beings, and artificial, which includes such com- 
binations of natural persons as the law recognizes as 
having legal rights and owing legal duties. Artificial 
persons are called corporations. 

Normal persons are those who are under no restric- 
tions or disabilities, either in fact or in law; in other 
words, ordinary persons. When persons have not nor- 
mal capacity, or are so circumstanced that they cannot 
exercise their faculties to an ordinary degree, they are 
abnormal, and are said to be under disability. Some 
disabilities are actual, as insanity, infancy, drunkenness, 
duress, etc. Some are imposed by law, as in case of a 
capable and well-developed minor who is under twenty- 
one years of age. This is legal minority after the person 
is in fact capable of caring for himself. Marriage on the 
part of a woman belongs also to this class. The general 
rules of law are made for normal persons; but wherever 
disability exists the law takes it into account and modifies 
the general rules so as to protect the abnormal person 
from improvident conduct on his part, and from imposi- 
tion by others. 

Combinations of Persons. Natural persons are per- 
mitted by law to co-operate in many ways, and form 
combinations of many sorts. Some of the most frequent 
of these we will consider. 

24 



370 Civil Government 

The Family. The earliest and most important of all 
human institutions is the family. The family is formed 
by marriage, and usually consists of a husband and wife 
and their children. The ties between them are the most 
sacred and enduring of all human relations. The dif- 
ferent members of a family are dependent on each other 
for happiness and success to a very large extent. At 
common law the woman almost lost her legal identity by 
marriage, but this is changed very much in Texas. 

The family has very real recognition in Texas. The 
homestead laws are for its benefit. Under these laws 
every family is entitled to a home, which cannot be taken 
from it for the payment of debts due by any of its 
members, unless the debt is for the purchase money of 
the home, for improvements made upon it, or for taxes 
due on it. The husband cannot sell the homestead unless 
the wife is willing and joins him in the deed. If the 
husband dies, the home, if there be one, must still be 
protected by the probate court in the administration of 
the estate. If the family has no home, the probate court 
must set aside money from the estate with which to buy 
one. This court must also let the family keep certain 
kinds of personal property, and enough provisions for a 
year. 

In Texas the property of the husband and wife is gov- 
erned very much as it was under the Spanish-Mexican 
laws in force there before 1836. All the property which 
belongs to the husband at the time of the marriage re- 
mains his. He also owns all the property which is given 
to him, or inherited by him, or which is willed to him, 
during marriage. The same is true as to the wife. AH 
that she owns at her marriage, all that is given to her, 
or which she inherits, or which is willed to her, is hers. 
This property belonging to the husband and to th& wife 



Municipal Law 371 

respectively is called separate property. All other prop- 
erty which either the husband or wife acquires during 
marriage, in any other way than those stated above, be- 
longs to both, each having an equal undivided interest 
in it, and is called community property. 

During marriage the husband has control of the com- 
munity property, with the right to sell it, unless it be 
homestead. He also has charge of the wife's separate 
property to manage, but he cannot sell it. He, of course, 
has control and power to sell his separate property, un- 
less the home be on it. 

Marriage does not affect the man's capacity to contract 
except as to the sale or the mortgage of his homestead. 
It has an extensive effect on the woman's capacity to 
contract. During marriage she can not make contracts 
except for necessaries for herself or her children, for the 
improvement of her separate property, or in the disposi- 
tion of her separate property. If the property is land, 
the husband must join with her in the sale; if it is per- 
sonal property, this last point is not clearly settled. 

The husband owes to the wife the duties of love, con- 
sideration, support and protection. The wife owes to 
the husband the duties of love, care, companionship and 
such reasonable assistance as their circumstances render 
proper. 

Parents owe to their children the duties of support, 
care, education and proper training; and the children 
owe to their parents the duties of obedience, respect, and 
service. 

Master and Servant. When one person employs an- 
other to do anything for him under his direction the em- 
ployer is called a master and the employed a servant. 
This is a very common relation, and the duties due from 
each of these parties to the other are settled with rea- 



372 Civil Government 

sonable certainty. As the relation is formed by agree- 
ment the parties can usually fix these duties between 
themselves, but they rarely do this. In absence of such 
agreement the duties which the master owes the servant 
are to use reasonable care to furnish him a reasonably 
safe place in which to work, reasonably safe tools with 
which to work, reasonably competent fellow-workmen, 
and, if the employment is complicated, to make reason- 
able rules to govern him and his fellow-workmen in 
carrying on the work. He also must pay him the agreed 
wages or reasonable value of the service. The servant 
owes the master the duty to serve him faithfully, obey 
his orders, and to use reasonable care not to injure his 
premises or tools, or other persons. 

Principal and Agent. When one person employs an- 
other to represent him in carrying on some business 
transaction the employer is called a principal and the 
employed an agent. The principal owes the agent the 
duty to deal fairly with him and pay him his compensa- 
tion. The agent owes to his principal the duty of faith- 
ful observance of all his orders and instructions, of the 
utmost fidelity in accomplishing the purpose for which 
he is employed, of communication of aU information 
which he gets in connection with the agency, and of ac- 
counting to him for all profits made in the agency bus- 
iness. 

The servant represents the master, and the agent the 
principal, in performing duties for them; if, in such per- 
formance and within the scope of the employment, either 
unlawfully injures a third person, the master or principal, 
as the case may be, is responsible to the third person for 
such injury. 

Partnership. A partnership is a combination of two 
or more persons who respectively contribute money, la- 



Municipal Law 373 

bor and skill to a business enterprise which they conduct 
for their joint profit. The law does not look upon a 
partnership as a thing apart from its members, but re- 
gards the members of the firm as having all the rights 
and owing all the debts growing out of the partnership 
business. Each member is the agent of the firm to act 
for it in carrying on the business, and each is liable to 
all firm creditors for the full amount of the firm's debts. 
If one partner pays more than his share, he can force 
the others to repay him. 

Private Corporations. Private corporations are created 
by the interested individuals, with the cooperation of 
the Government, for the purpose of accomplishing 
some definite object. There are certain advantages 
in this form of cooperation not in any other. Among 
these are concentration of power in the management, and, 
ordinarily, freedom from personal liability by the mem- 
bers for debts of the corporation. A corporation, as to 
its business operations, is dealt with by the law as if 
it were a being separate and distinct from its members, 
so that rights to which it is entitled are not regarded as 
rights of the members, and duties which it owes are not 
their duties. This is usually expressed by saying that 
a corporation is a legal entity, capable of sustaining legal 
relations in its own behalf. Almost all business corpora- 
tions issue stock. Those getting up the corporation de- 
termine how much money will be needed to carry on the 
contemplated business, and fix on that as the amount of 
the capital of the corporation. Different persons promise 
to pay in such parts of the capital as they feel disposed. 
This is called subscribing for or taking stock in a cor- 
poration. In lieu of these promises, or the money if that 
is paid, the corporation gives them formal statements 
that they have promised to pay, or have paid, the respec- 



374 Civil Government 

tive sums subscribed, and are entitled to share in all the 
rights and benefits of the corporation in the proportion 
which their subscrip^ons bear to all the capital of the 
corporation. These rights in the corporate enterprise 
are shares of stock, and the statements issued by the cor- 
poration are called certificates of stock. The owners of 
stock are called stockholders or shareholders. Each 
subscriber for stock must pay the company the amount 
of his subscription. A part of it must be paid in cash. 
The balance is to be paid at the times stated in the sub- 
scription and charter of the company, if they provide for 
that. If they do not, it is payable at such times, and in 
such amounts, as the directors of the corporation deter- 
mine. The amount which the directors require to be 
paid in at any one time are assessments, and the demand 
for it is a call. In Texas now one-half must be paid 
when the corporation is formed, and all within two years. 

When the subscription is fully paid the stock becomes 
paid-up stock, and the holder ordinarily is not subject 
to any further assessment. In some corporations, as, for 
instance, National Banks, if the company fails, every 
holder of stock is liable to pay an additional sum equal 
to the stock held by him. 

If the corporation succeeds, the profits it makes may 
be kept in the company to enable it to do a larger bus- 
iness, in which case they are called surplus; or they 
may be divided and paid to the stockholders in propor- 
tion to their stock, in which case they are called divi- 
dends. Shares of stock may be sold or otherwise dis- 
posed of by the owner. The effect of a sale is to sub- 
stitute the purchaser for the seller in all future dealings 
with the corporation. Assessments made thereafter must 
be paid by the buyer, and dividends declared thereafter 
are paid to him. 



Municipal Law 375 

After those desiring to form the corporation have se- 
cured sufficient subscribers for stock they take out a 
charter. It is the charter which gives the corporation 
life, and all its powers and privileges are determined 
by that. It cannot lawfully do anything not authorized 
by the charter. 

The general policy of the corporation within the limits 
of its charter powers is determined by the stockholders, 
who ordinarily adopt its by-laws. They also elect the 
directors. These directors are a board of managers, 
who have actual control of the corporate affairs. They 
select the officers and general representatives of the cor- 
poration. 

A corporation can only act through agents, and it is 
entitled to the benefit of their lawful acts and subject 
to liability for their unlawful acts, just as a natural per- 
son is for the conduct of his agents. 

Common Carriers. A common carrier is one who car- 
ries goods and passengers as a business for all who de- 
sire to patronize him. He does not have to carry all 
sorts of goods, or to all places, or over all routes, or 
with all kinds of vehicles; but, within the limits of the 
business he holds himself out as doing, he must carry 
for all without unjust discrimination either in the ser- 
vices rendered or the charges made. 

The law imposes on a common carrier very great re- 
sponsibility. He is practically an insurer of the safe 
delivery of goods entrusted to him; that is, he must de- 
liver such goods uninjured at the point of destination 
within a reasonable time after he receives them, and can- 
not excuse himself from liability for injury to them un- 
less he can prove that the injury was caused by natural 
causes, operating in such unusual and unprecedented 
manner that the occurrence could not have been fore- 



376 Civil Government 

seen and prevented, as a cyclone; or by the nature of 
the thing shipped, as the natural decay of fruits; or by 
a public enemy, as in case of war or an insurrection; or 
by some wrong of the person making the claim, as 
that he had stolen the goods; or by the action of the 
law, as when the goods are taken by an officer under 
command of a lawful writ. 

A common carrier of passengers is not an insurer of 
their safety, but he must use the highest practicable care 
for them. 

Property. Things owned are called property. Land 
and things permanently attached to it are called real 
property. Things attached to land are called fixtures. 
If the attachment is permanent in fact, or in legal pre- 
sumption, it is called a permanent or immovable fixture, 
and is regarded as a part of the land. If not so attached, 
it is called movable, and is not land. All property not 
real is personal or movable property. 

The highest right which a person can have in a thing 
is called general ownership. A right in property less 
than general ownership is called special ownership. A 
legal claim, interest or right which one has to real prop- 
erty is called an estate. Real estate is estate in land 
which continues for an indefinite period, and which may 
be inherited by the heirs of the owner. The highest form 
of real estate is a fee simple. 

Estates in land may be acquired by inheritance, by 
will, or by conveyance. Conveyances of estates for longer 
than one year must be in writing. Such a writing is, 
in Texas, called a deed. Ownership of personal property 
may be acquired in many ways. The most frequent are : 
by production, as a book written, or a crop raised; by 
increase of property already owned, as wool grown on 



Municipal Law 377 

sheep, or the calves in a herd of cattle; by inheritance, 
devise, gift, exchange, or purchase. 

Many kinds of special ownership in personal property 
are called bailments. A bailment always involves the 
idea that the ownership of the property is in one person 
and its possession in another. The owner is called the 
bailor and the one in possession the bailee. Bailments 
are of three general kinds, those for the benefit of the 
bailor exclusively, those for the benefit of the bailee exclu- 
sively, and those for the benefit of both. In the first class 
the bailor is required to use only a slight degree of care 
for the safety of the thing, in the second he must use a 
high degree of care, and in the third only ordinary care. 

Contracts. As previously stated, a contract is an agree- 
ment enforcible at law. To be enforcible the agreement 
must be real, involving genuine concurrence of the minds 
of both parties; that is, the seeming agreement must not 
be based on mistake of any material fact, and must not 
have been secured by fraud or duress by the person seek- 
ing to enforce it. It must be between legally competent 
parties, based on legal consideration, have lawful pur- 
pose and be in proper form. 

Mistake needs no explanation. Fraud is deception re- 
sulting in unfair disadvantage to the person deceived. It 
is the deception, and not the means or artifice by which 
it is produced. The common law denies any relief to the 
deceived person unless the other knew the statements 
made were false and intended to deceive. In Texas re- 
lief is not limited to cases of intended wrong. The con- 
trolling question with us is, actual deception on a ma- 
terial point, brought about in such way that the per- 
son getting the benefit from it is responsible therefor. 

Fraud avoids contracts induced by it, if the defrauded 



378 . Civil Government 

person desires to give it this effect. It cannot be taken 
advantage of by the wrongdoer. Sometimes two or more 
persons conspire together to defraud another. In snch case 
the fraudulent act is invalid as against the person sought 
to be injured. It, however, frequently changes the rights 
of the fraudulent conspirators, for the law will not make 
any settlements between them, so if one has gotten ad- 
vantage in the transaction, the other cannot compel any 
accounting by him. For example, if a person who is in 
debt makes a deed to property to another without getting 
anything for it, but with intent to defraud his creditors, 
the creditors can still proceed against the property and 
sell it for the debts; but, if they do not, the debtor can- 
not compel the other to reconvey the property to him. 

Coercion is an overpowering sense of danger produced 
on the mind by force or threats of violence which pre- 
vents the free action of the will and constrains the per- 
son subjected to it to do that which if he were left to 
his own volition he would not do. It renders all agree- 
ments induced by it invalid against the coerced party, 
who is always legally entitled to be relieved from them 
if he acts promptly. 

All normal persons may make contracts. Persons un- 
der disability ordinarily cannot; in exceptional kinds of 
cases they can. Persons under disability are married wo- 
men, minors, insane persons, habitual drunkards, and 
persons actually drunk. The power of married women 
to contract has already been considered. Minors are not 
bound by agreements except for necessaries, and then 
only for the real value, not the agreed price. In all 
other cases a minor can repudiate the agreement. If 
he had anything which he had received under the agree- 
ment in his possession when he became of age, and after- 
ward seeks to avoid the agreement, he must restore it. 



Municipal Law 379 

The rules as to insane persons and habitual drunk- 
ards are the same as to minors, except that the other 
party to the agreement must know or have notice of the 
disability at the time of making the agreement to ren- 
der the agreement voidable. Persons actually drunk 
when agreements are made can repudiate them by mak- 
ing restitution, unless they were for necessaries. 

Consideration is anything of pecuniary benefit to the 
promisor, or hurt to the promisee. It need not be duly 
proportionate to the promise, or to the thing to be re- 
ceived under the promise. That is largely a matter of 
business capacity, though in cases of gross disproportion 
it takes but little additional evidence to show fraud. At 
common law written instruments under seal imported con- 
sideration; that is, the presence of the seal raised a pre- 
sumption of consideration, and made the agreement good 
on this point, whether there was in fact any considera- 
tion or not. This has been changed in Texas, and now 
any written agreement carries with it a presumption 
that is is supported by consideration; but the real facts 
may be shown, and if there was really no consideration, 
the agreement ordinarily cannot be enforced. 

Agreement to be enforcible must not be contrary to 
law or public policy. The State cannot afford to give its 
countenance and aid to attempts to violate the law. This 
it would do if it recognized and compelled performance of 
such promises. 

Most agreements are good though evidenced only by 
words, or even by conduct. There are a few kinds, 
however, which are required to be in writing. These are, 
conveyances of estates in land for longer than one year; 
promises by an administrator to pay debts of the estate out 
of his own means; agreements which are not to be per- 



380 Civil Government 

formed within one year, and agreements to pay the debts 
of another person. 

An agreement conforming to all the foregoing require- 
ments creates legal rights, and can be enforced through 
the courts. 

Law Merchant Contracts. There is another class of 
contracts which are entitled to special notice. These are 
those evidenced by the different kinds of commercial 
paper which are designed to pass from one person to an- 
other in the ordinary transaction of business. There were 
no such contracts at early common law. Later they were 
introduced into England by merchants from the Con- 
tinent. These merchants brought their own business rules 
or customs with them. These to a large extent were re- 
luctantly adopted by the English courts in dealing with 
these kinds of contracts. So these special rules are known 
as the Law Merchant, and the contracts specially gov- 
erned by them as contracts of the Law Merchant. These 
contracts are negotiable notes, bills of exchange, and 
checks. To be in either of these classes the contract 
must be in writing, and of such kind that the law in- 
terprets it as an absolute promise to pay a certain sum 
of money to a certain person at a certain time, and must 
in addition show on its face that the person in whose 
favor it is made can substitute another for himself as 
the payee, either by simply delivering the paper to him, 
or by writing the payee 's name upon the back of it. This 
capacity to pass from hand to hand is called negotiabil- 
ity, and distinguishes the kinds of papers we are now 
considering from all other contracts. The holder of ne- 
gotiable paper may frequently pass to another a bet- 
ter claim under it than he himself has. This results 
from the Law Merchant doctrine regarding innocent pur- 



Municipal Law 381 

chasers of such paper. Under this doctrine the negotia- 
tion of such paper before maturity for value to one who 
receives it in good faith and without notice of any de- 
fenses passes it freed from all such defenses, and the 
payor must pay the paper to him, and adjust his other 
claims with the one who sold the paper. 

Torts. There are a great many legal rights which do 
not depend on contract. They are given or recognized 
by the law, and the duty to respect them is not based 
on any willingness or assent on the part of the one 
obliged, but rests solely on the will of the sovereign as 
expressed in law. "Wrongs which violate these legally 
imposed duties and their correlative rights are Torts. 

Such wrongs can be committed against any one who 
has legal rights existing independent of contract, and 
by any one on whom the law imposes duty without as- 
sent, and by any means by which wrongs may be done. 
Whenever a tort is committed the wrongdoer, who is 
called the tortfeasor, becomes legally bound to compensate 
the injured person for the actual injury suffered by him, 
and if the wrong was willfully and intentionally done, 
he may be made to pay additional penalties called exem- 
plary or punitive damages. 

The compensatory damages which the wrongdoer must 
pay are those which an ordinarily prudent person would 
have foreseen as the natural and probable results of the 
wrong. Beyond this the law does not go in fixing act- 
ual damage. Not only are persons, natural and artificial, 
responsible for torts committed by themselves, but also 
for those committed by others who are acting for them, 
when the wrong is done within the scope of the wrong- 
doer's employment. Thus a master must pay the damage 
done by his servant by committing torts within the ser- 



382 Civil Government 

vant's employment, and the principal, that done by his 
agent in carrying on his business. 

A few of the more frequent torts will now be con- 
sidered by way of illustration. 

Negligence. This is one of the most frequent of all 
torts. It is negative in its nature, consisting in failure 
to use the degree of care which the law requires as a 
duty. It is not a state of mind, but is conduct. Its op- 
posite is diligence. It may consist in doing that which due 
care forbids, or in failing to do that which it requires. 
Whenever the law demands the exercise of a certain de- 
gree of care as a duty, failure to exercise such care is 
negligence, and if any one to whom the duty is owing is 
injured it is a tort. 

The standard by which the law measures the care to 
be required of a person under any circumstances is the 
man of ordinary prudence and judgment. Sometimes 
the lawmakers have applied the standard themselves, and 
declared that under certain circumstances a named de- 
gree of care must be used. For example, a common car- 
rier of passengers is required as matter of law to use the 
highest practicable care for their safety. 

Cases in which this application have been made are 
unusual. The jury is ordinarily left to use its own judg- 
ment as to what care an ordinarily prudent person would 
have used. As the standard by which care is measured 
is always the same the result of measuring different states 
of fact must necessarily be different, just as weighing 
different amounts of the same commodity with the same 
weight must give different results. Hence, it can never 
be known whether any one has been guilty of negligence 
in any matter until the facts are ascertained and meas- 
ured by the legal standard of care. For example : On the 
same passenger train are passengers and a train crew. 



Municipal Law 383 

The passengers pay the railroad company for the privi- 
lege and right of being carried safely over its road. The 
company pays the crew for operating its train. A wreck 
occurs, and a passenger and one of the crew are injured. 
Should the liability of the company to these parties be 
the same? Clearly not. An ordinarily prudent man 
handling appliances so dangerous as a railroad train, 
and having practical control of those who have paid him 
for service to them, would use extreme care for their 
safety; hence, this is the rule as to the passenger. The 
same man who had employed servants to care for others 
in his charge would not use the same kind of care for 
the employes. Hence, as to these the company only owes 
ordinary care. 

Defamation. The publication of any false idea con- 
cerning another which is reasonably calculated to bring 
him into disrepute is defamation, and if it results in 
damages is a tort. Telling the truth is never defama- 
tion. Publication is conveying the idea to a person not 
the one referred to. It may be accomplished by speech, 
or writing, or print, or picture, or effigy, or wink, or nod, 
or by any other means by which thought can be conveyed. 
If the publication is made by transient means, as by 
speech or wink or nod, the tort is called slander; if by 
permanent means, as writing or print or picture, it is 
called libel. 

False statements are sometimes privileged, as stated 
in connection with the right to reputation in Chapter 
XXVIII. If the idea communicated is such that it is pre- 
sumed by law to result in damages, it is said to be ac- 
tionable per se. If it is not presumed to be hurtful, dam- 
age must be shown. 

Criminal Laws. There are a great many criminal laws — 
entirely too many to consider here. They are designed 



384 Civil Government 

to protect the public against evil men and their wrong- 
doing. Taken in their entirety, the criminal laws of a 
people and the manner and extent of their enforcement 
are a very fair index to the development the people have 
reached. In many States the codes indicate better con- 
ditions than do the attempts at enforcement. The States 
are gradually improving in both respects, and as intelli- 
gence and sense of civil responsibility increase the im- 
provement will be more rapid. 

RECAPITULATION. 

Natural persons are human beings. Artificial persons 
are corporations. 

Normal persons are those not under disability in fact 
or in law. 

Abnormal persons are those under disability. They in- 
clude the following: married women, minors, insane per- 
sons, and drunkards. 

The family is the most important of human institu- 
tions. It is formed by marriage and usually consists of 
a husband, a wife and children. 

Texas exempts the home of a family from forced sale 
for debts, except for the purchase money of the home, 
or for improvements made on it, and for taxes on it. 

The separate property of each spouse is the property 
owned by him or her at the time of marriage, and that 
received afterwards by gift or by inheritance or by will. 
This belongs to the husband or wife, as the case may be. 

Community property is all property acquired by the 
husband or wife or by both, after marriage, in any other 
way than one of those above stated. 

During the marriage the husband has control of all 
community property, and of the separate property of him- 
self and wife. He can sell his property and community 



Municipal Law 385 

property unless it is homestead. He can control the sep- 
arate property of the wife, but cannot sell it. 

A married woman can contract for the benefit of her- 
self or her children or of her separate property. She 
can sell her property if joined by her husband. 

One who employs another to serve him under his con- 
trol is a master. The one employed is a servant. The 
parties may fix their duties by contract; if they do not, 
the law fixes them. 

One who employs another to perform a business trans- 
action for him is a principal. He who is employed is 
the agent. 

Partners are persons who have put together their capi- 
tal, skill, and labor in some business for purpose of making 
money for them jointly. 

Each partner has equal voice in the management of 
the business unless the partnership agreement provides 
otherwise. Bach partner is responsible for all the debts 
of the firm. 

Private corporations are recognized in law as legal 
entities. They have rights and owe duties. The mem- 
bers of business corporations are usually stockholders. 
Their rights and duties are in proportion to their shares 
of stock. They are not liable for the debts of the com- 
pany beyond making payment in full for their stock. 
The directors of a corporation manage its business. Cor- 
porations are responsible for the acts or omissions of 
their employes, just as natural persons are. 

A common carrier is one who holds himself out as 
carrying, within the limits of his business, for everybody 
who desires his services. "When he carries freight he is 
practically an insurer, but may relieve himself by show- 
ing that the injury complained of was received by the 
25 



386 Civil Government 

act of God, of the public enemy, by some defect in the 
thing shipped, by some wrong of the claimant, or by 
command of the law. A common carrier of persons must 
use the highest practicable care for their safety. 

Things owned are called property. Land is the soil 
and everything permanently attached to it. All other 
property is called personal. The highest title to land is 
a fee simple. 

A bailment is the holding possession of property be- 
longing to one person by another. 

Commercial paper includes notes, bills of exchange 
and checks. These papers must always be payable in 
money and be certain as to the parties and the amount 
and time of payment. They must be negotiable • that is, 
payable to order or to bearer. They import considera- 
tion, and are subject to the doctrine of innocent pur- 
chaser for value. 

A tort is a wrong violative of a private legal right which 
does not depend directly on agreement. A person com- 
mitting a tort is responsible for the directly resulting dam- 
ages. 

Actual damages are those really suffered. Exemplary 
damages are additional damages imposed because of the 
intentional or wanton nature of the wrong. 

Negligence is the failure to use that degree of care 
which the law requires as a duty. The standard of care 
is the average man. Negligence must always be deter- 
mined by the facts of the case. 

The purpose of criminal law is to protect the peace 
and order of society, and the degree of a people's civili- 
zation may be judged by their criminal laws and the 
way in which they are enforced. 



Municipal Law 387 

QUESTIONS. 

I. 1. What is meant by a natural person? 2. What by an 
artificial one? 3. How does the law take into account legal 
disabilities ? 

II. 1. What is a family? 2. In what ways does the Texas 
law recognize the family? 

III. I. What is separate property? 2. What is community 
property? 3. Who controls community property during marriage? 

4. To what extent can a married woman make contracts in Texas? 

IV. 1. Who is a master? 2. What duties does he owe his 
servant? 3. What duties does the servant owe his master? 4. 
Why is a master responsible to third persons whom the servant 
hurts unlawfully in carrying on the master's business? 

V. 1. What is a partnership? 2. Who owes the partnership 
debts? 3. If one partner pays all of a partnership debt can he 
get back any of the money, and, if so, from whom? Why? 

VI. 1. What is a private corporation? 2. Who must take 
part in the formation of a corporation? 3. What is a share of 
stock in a corporation? 4. What is the capital of a corporation? 

5. What is surplus? 6. What are dividends? Calls? 7. How 
are corporations managed? 

VII. 1. Who is a common carrier? 2. What is the duty of 
a common carrier of freight? What will excuse him from doing 
this? 3. W T hat care does a common carrier owe to passengers be- 
ing carried by him? 

VIII. 1. What is land? 2. What is personal property? 3. What 
is a fee simple title to land ? 4. How may land be conveyed ? 
5. How may personal property be acquired? 6. What is a bail- 
ment? 7. Why does the law require more care in one kind of 
bailment than in another? 

IX. 1. What qualities must an agreement have to make it a 
contract? 2. What is fraud? 3. W 7 hat is its effect on an agree- 
ment induced by it? 4. Can an infant or an insane person make 
contracts? 5. What is a contract of the law merchant? 

X. 1. What is a tort? 2. How does it differ from a breach 
of contract? 3. Against whom may torts be committed? 4. By 
whom? 5. What are compensatory damages? 6, What are ex- 
emplary damages and when are they allowed? 

XI. 1. What is negligence? 2. What is the law's standard 



388 Civil Government 

by which to measure care? 3. Who ordinarily decides whether 
or not there is negligence in a case? 

XII. 1. What is defamation? What is libel? What is slander? 

XIII. 1. What is the general purpose of criminal law? 2. How 
does the nature of the criminal law made by a community show the 
character of the community itself? 

THOUGHT QUESTIONS FOR REVIEW. 

I. 

1. In a democratic government, why is not public opinion law? 

2. What is meant by the statement that in such a government 
public opinion is the source of law? 

3. Why must there always be two methods of forming law in a 
democracy ? 

4. What are meant by legal principles and how are they ascer- 
tained ? 

5. How do legal rights grow out of legal rules of conduct? 

II. 

1. Why is it convenient to classify law? 

2. Why do we need both criminal and civil law? 

3. Why do we separate civil law into contract and tort law? 

4. Is the classification into substantive and adjective law based 
on any real differences in these laws, or is it arbitrary? 

5. Why is the law evidenced by the reports of decisions of courts 
called common law? Why is it also called unwritten? 

6. What was the origin of equity as a system? 

III. 

1. Why is it impossible for one person to have a legal right 
unless another owes him a legal duty? 

2. Why is it necessary to classify legal rights? 

3. Are the different classes of rights as given in the text mutu- 
ally exclusive, or do some of them overlap? 

4. Why does the law protect the body more effectively than it 
does the mind? Why is it necessary to have exceptions to the 
general rule that application of force to the body of another is 
unlawful ? 

5. Why is it necessary to allow persons to change legal rights 
by agreement? Why is it necessary to limit this right? What is 



Municipal Law 389 

the difference between the understanding and the will? Why is 

recognition of this difference necessary in contract law? 

6. On what principle can the States' right to regulate or in 
some instances to prohibit business be sustained? 

IV. 

1. Distinguish between rights against particular persons, rights 
in particular persons and rights in things. 

2. Can our present civilization be maintained without the recog- 
nition of property rights? Has the State any right to limit prop- 
erty rights in any way? Can property rights exist except as a 
result of law limiting the conduct of other persons? 

3. How do the States' powers of taxation and eminent domain 
limit private ownership? 

V. 

1. Why does the law make different rules for normal and abnor- 
mal persons? 

2. Why is the family necessary to civilization? 

3. What is the underlying principle of the homestead law? 

4. Why is the tendency of the law toward the enlargement of 
the rights of married women? 

VI. 

1. Could the business of the world be carried on without per- 
mitting one person to act and exercise many of his legal rights 
through others? 

2. To what extent does justice require that the master or princi- 
pal shall be responsible for the conduct of those acting for him? 

3. Why should individuals be allowed to form partnerships with- 
out special authority, and be denied the privilege of forming cor- 
porations in the same way? 

4. What is meant by a corporation being a legal entity? 

5. What is a share of stock in a corporation, and what rights 
and liabilities go with it? 

6. On what principles of policy and justice can the special con- 
trol of common carriers be sustained? What is meant by a com- 
mon carrier of freight being an insurer of its safe delivery? Why 
is it just to allow him the five defenses set out in the text? 

VII. 

1. Why is land regarded as the most important kind of property? 



390 Civil Government 

2. Is it good policy to recognize the right of an owner to at- 
tach things to the soil and thus make them parts of the land? 

3. Why does the law class movable things as personal property? 

4. Why does the law require a different amount of care in the 
different kinds of bailments? 

5. Why does the law require written conveyances of land and 
not of personal property? 

VIII. 

1. Why does mutual mistake prevent agreement? 

2. What is the effect of fraud or duress upon agreement? Why 
is this? 

3. Why does the law require contracts to be in writing and 
certain in every respect before it will recognize them as negotiable ? 

IX. 

1. What is a tort? Why may persons under legal disability 
be guilty of tort? 

2. What redress does the law give for torts committed unin- 
tentionally or in good faith? What when done willfully? 

3. On what principle and to what extent is a master responsible 
for torts committed by his servant? 

X. 

1. Is negligence a state of mind or conduct? 

2. What amount of care does the law require one person to 
use for the safety of another? 

3. Is this just, or should a person injured unintentionally by 
another bear the loss himself? Could there be any middle course 
between these? 

4. In any given case how does the law determine whether or not 
conduct is negligent? 

5. Why is a person entitled to protect his reputation? 

6. What is the difference between reputation and character ? 

7. Can telling the truth ever bring one's reputation below his 
character ? 

8. Ought telling the truth ever to be a tort? 

9. What exceptions are made to one's right to recover damages 
for defamation? 

10. Is this good policy? 



INDEX. 



Adjutant General, 266 

Agreements in writing, 379-80 

Agriculture, Commissioner of, 266 

Agricultural and Mechanical Col- 
lege, 305-06 

Alamo, 226 

Alien, 58 

Allegiance, 58, 61 

Appeal, Procedure on, 281 

Appeals, see also Circuit Court of 
Appeals; Civil Appeals, Courts 
of; Criminal Appeals, Courts of 

Appellate courts, 37 

Appropriation, State, 52 

Aristocracy, 7, 14 

Arms, right to bear, in Texas, 
294-95 

Army, Standing, 44 

Assessment of Taxes, see Taxation 

Attorneys, 280-81 

Attorneys, see also, County Attor- 
neys; District Attorneys 

Attorney General (Texas), 262-63 

Austin/ Stephen F., 224-25 

Bail, 292 

Bank notes, 136 

Banks, National, 136; 151-52 

Bill, Passage of a, 33-34 

Bill of Rights, see Texas, Consti- 
tution, Text 

Bonds (U. S.), 135 

Burnett, David G., 226-27 

Cabinet (U. S), 36; 162-63 

Carriers, Common, 375-76 

Carriers, Regulation of, 141-43 

Certificates, gold and silver, 136- 
37 

Cities and towns, 214; 331 

Citizen, 58 

Citizenship, 59; 63-64 

Civil Appeals, Courts of ( Texas ) , 
281-83 

Circuit Courts of Appeals, 173-74 

Circuit Courts (U. S.), 174 

Civil law, 351 

Coercion, 378 



Coinage, 133-34 

Coke, Richard, 236 

Commerce, 140-41 

Committees, Legislative, 34 

Commercial paper, see Contracts, 
Law Merchant 

Commissioners Court, see County 
Commissioners Court 

Comptroller of Public Accounts 
(Texas), 261-62 

Confederation, 18 

Confederation, Articles of, 89 

Congress, Continental, 86; 88 

Congress (U. S.), 113-115 

Congress (U. S.), Power of, 127- 
28 

Congress (U. S.), see also Senate 
(U. S.)> House of Representa- 
tives (U. S.) 

Consideration, 379 

Constitution, American, 27 

Constitution, Amendments to 
Texas State, 340-41 

Constitution, English, 26 

Constitution, U. S., 27; Amend- 
ments, 110; 193-94; First con- 
stitutional convention, 95; guar- 
antees of, 196-204; Interpreta- 
tion of, 102; 104; Ratification 
of, 96-98; Restrictive provisions, 
179-194 

Constitutions, State, 28; Written, 
28-29 

Consultation of 1835 (Texas), 225 

Contracts, 186; 293; 377-78; 360-62 

Contracts, see also Agreements in 
writing 

Contracts, Law Merchant, 380-81 

Convention system, 73 

Conventions, see also Precinct con- 
ventions ; County conventions ; 
Delegate conventions 

Copyright, 148-49 

Corporations, Charter of, 152-53 ; 
Private, 204; 373-75; see also 
Municipal Corporations 



392 



Index 



Counties, 210-211 

Counties in Texas, 331 

County Commissioners Court 
(Texas), 271-72 

County convention, 74-75 

County courts (Texas), 273-75 

County officers, 211; 277 

County Superintendent of Educa- 
tion (Texas), 308 

Courts, Procedure, 38 

Courts, see Justice of the Peace, 
Court of; Appellate Courts; 
Trial courts 

Criminal Appeals, Court of (Tex- 
as), 284 

Criminal law, 351 

Davis, E. J., 236 

Debts, Texas State, see Revenues. 
Texas State 

Declaration of Independence, 88 

Declaration of Rights, 86 

Defamation, see Libel 

Delegate conventions, 75 

Democracy, 8, 14 

Democratic party, 78 

Disqualification for office in Texas, 
245-46 

District court (Texas), 275-280 

District courts, U. S., 174-75 

Domicile and residence, 58-59 

Education, County Superintendent 
of (Texas), 308 

Education, Board of (Texas), 307 

Elections, Primary, see Primary 
elections 

Electors 121 

Eminent domain 53-54; 293 

Employer's liability, see Negli- 
gence 

Empresario system, 223 

Enabling acts, 106 

Enabling acts (Texas), 334-35 

England and the colonies, 84-85 

English Constitution, see Constitu- 
tions, English 

Equalization, Board of, 50 

Equity, 175-76; 354 

Executive department (U. S.), 35 

Executive officers (Texas), 259-68 



Executive department, State, 36 

Extradition of criminals, 201-02 

Family, 370 

Finance, Public, 46-53 

Fraud, see Contracts 

Government, Classification of, 20; 
Definition of, 1; 9; Depart- 
ments of, 32; Necessity for, 4; 
Popular, 21; Protection by, 58- 
62; Purpose of, 4 

Governor of Texas, 260 

Grand jury (Texas), 279 

Habeas corpus, 185-86; 292 

Health Officer, State (Texas), 
266-67 

Homestead exemption law (Tex- 
as), 229; 318; 370 

Homestead rights, see Pre-emption 

Homicide, 359 

House of Representatives (Texas), 
252-53 

House of Representatives, (U. S.)> 
119-22 

Houston, Sam, 227 

Impeachment of President of U. 
S., 166 

Impeachment of Texas State offi- 
cial, 339-40 

Imprisonment for debt, 294 

Independence, Declaration of, see 
Declaration of Independence 

Indictments, 278-79 

Insurance, Statistics and History, 
Commissioner of (Texas), 265- 
66 

Interstate commerce, 141-43 

Interstate Commerce Commission, 
143-44; see also Carriers, Regu- 
lation of 

Judges, U. S., J76 

Judgment, 39 

Judicial department, U. S., 36; 
168-172 

Judicial districts (Texas), 276-77 

Justice of the Peace, Court of, 37; 
212-13; 272-73 

Land Office, Commissioner of the 
General (Texas), 262 

Land, Public, 52; 105 



Index 



393 



Land registration, see Registra- 
tion of land titles 

Land system in Texas, 315-320 

Law, Adjective, 352-53 

Law, Common, 175-76 

Law, Definition of, 9 

Law, Ignorance of, no excuse, 2 

Law, Interpretation of, 2 

Law Merchant Contracts, see Con- 
tracts, Law Merchant 

Law, Substantive, 352-53 

Law Suspension of, 295-96 

Law and Equity, 175-76 

Law, see also Civil, Criminal, Mil- 
itary, Martial, Municipal Law 

Laws of Texas, 228; Local, 256-57 

Legal tender, see Coinage 

Legislative Department, U. S. ? 32 

Legislature (Texas), 249-56 

Libel, 363; 383 

Liberty of speech, 187-88; 290-91 

Louisiana purchase, 221 

Married women's property (Tex- 
as), 370-71 

Martial law, 355 

Master and servant, 371-72 

Military law, 354 

Militia, 44 

Mississippi Lottery Co., 217 

Monarchy, 7; Absolute, 12; Con- 
stitutional, 13; Development of, 
25 

Monopolies, see Trusts 

Murder, see Homicide 

Municipal corporations, 329-33 

Municipal law, 347-51; 353-54 

Naturalization, 60; 64; 149-51 

Negligence, 382-83 

Negro schools (Texas), 311 

Nominations for office, 72; 76-77 

North Texas State Normal College, 
306 

Notes, see Bank Notes; Treasury 
Notes 

Officers, Civil, 45 

Oligarchy, see Aristocracy 

Ownership, 365; 376-77 

Pardons, 163 

Pardons, Board of (Texas), 266 

Party organization, 70 



Parties, Political, see Political 
Parties 

Patent laws 148-49 

Persons, 369 

Philippine islands, 109-10 

Police power, 54; 217 

Political parties, 68-69 

Postoffices, 131 

Prairie View State Normal and 
Industrial College, 306 

Precinct conventions, 73 

Precincts, see Justices precincts; 
Voting precincts 

Pre-emption (Texas), 318 

President, U. S., 159-60; Duties of, 
163-66; Election, 160-62; Influ- 
ence on Legislation, 122-24; Im- 
peachment, 166 

Presidential electors, 121 

Presidency, Succession to, 166-67 

Primary elections, 76 

Private corporations in Texas, 333- 
335 

Probate jurisdiction (Texas), 274 

Property, see Ownership 

Property rights, 362-63 

Protection by government, see 
Government protection 

Public Instruction, Superintendent 
of (Texas), 264 

Public school system (Texas), 
298-313 

Purchasing Agent (Texas), 267 

Quarantine, 145 

Railroad Commission, (Texas). 
268; 338-39 

Railroads, Law governing, in Tex- 
as, 335-38 

Registration of land titles, 319-20 

Removal from office (Texas), 339- 
40 

Removal from Office, see also Im- 
peachment, Disqualification for 
office in Texas 

Representative districts U. S., 122 

Representatives, Election of, 120- 
21 

Republican narty, 7S 

Residence and domicile, 58-59 

Revenue Agent, Texas, 267 



394 



Index 



Revenues, Texas State, 326-29 
Rights in things, see Ownership 
Rights, Legal, 356-58; Personal, 

358-66 
Roman law, see Civil law 
Sam Houston Normal Institute, 

306 
San Jacinto, Battle of, 226 
Scholastic age in Texas, 311 
Santa Anna, 224 
School system (Texas), 298-312 
School lands (Texas) 318-19 
Search, Right of (Texas), 291 
Secession of Texas, 231-32 
Seeretarv of State, Texas, 264-65 
Senate, U. S., 116-119 
Servant and master, 371-72 
Senate (Texas), 251-52 
Sheriff (Texas), 278 
Sovereignty, 5; 102-03 
Sovereignty, Seat of, 7; 15 
Southwest Texas Normal, 306 
State, Federal, 19 
State, Political subdivisions of, 

209-217 
State, Unitary, 17 
State, see also Confederation 
State Executive, see Executive 

Department, State 
States, Admission of, 107-08; 208 
State's rights, 6; 102-05; 190-92; 

208-09 
Subject, 58 
Suffrage, 16; 61 
Suffrage in Texas, 243-44 
Supreme Court (Texas), 283-84 
Supreme Court, U. S., 104; 172-73 
Tax Commission (Texas), 268 
Taxation, 47-50; 200 
Taxation by Congress, 129-31 
Taxation, Texas State, 309; 320- 

26 
Teacher's certificates (Texas), 310 



Territorial enabling acts, see En- 
abling acts 

Texas Constitution, 226; 230-31; 
232; 237 

Texas Constitution, Text, 238-44; 
254-55; 263; 271; 290-6; 298- 
302; 315-17; 320-24; 326-31; 
333-37 

Executive Department, 259-68 
History, 17; 108-09; 222-37 
Judicial Department, 271-86 
Jurisprudence, 228 
Land system, 316-20 
Legislature, 249-56 
Public school system, 298-312 
Restrictive provisions, 289-96 
Secession, 231-32 
Statehood, 223-24; 226 
Suffrage, 243-44 
Taxation, 320-29 

Towns, see Cities and towns 

Towns (Townships), 213-14 

Torts, 381-82 

Treason, 296 

Treasurer, Texas State, 262 

Treasury notes, 135-36 

Treaties, 164 

Trial courts, 37; 286-87 

Trials (Texas), 291-93; Examin- 
ing, 284-86; New, 280 

Trusts, 144; 295 

United States Colonial Govern- 
ment, 83-84; Constitution, 27; 
94-98; 102-104; House of Rep- 
resentatives, 119-20; Island pos- 
sessions, see Philippine Islands; 
Senate, 117-19 

University of Texas, 304-05 

Veto, 34; 124-25 

Veto (Texas), 261 

Vote, see Suffrage 

Voting, see Suffrage 

Voting precincts, 213 






1905 



_ 



